State v. Ritter , 2024 ND 142 ( 2024 )

IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2024 ND 142State of North Dakota, Plaintiff and Appellee
v.
Cody Wayne Ritter, Defendant and Appellant
No. 20230337
Appeal from the District Court of Ransom County, Southeast Judicial District, the
Honorable Nicholas D. Thornton, Judge.
REVERSED.
Opinion of the Court by Tufte, Justice.
Fallon M. Kelly, State’s Attorney, Lisbon, N.D., for plaintiff and appellee.
Daniel J. Frisk (argued) and Mark A. Schwab (on brief), West Fargo, N.D., for defendant
and appellant.
State v. Ritter
No. 20230337
Tufte, Justice.
[¶1] Cody Wayne Ritter appeals from a criminal judgment entered after a jury convicted
him of sexual assault. On appeal, he argues the district court abused its discretion by
admitting video evidence of a forensic interview under N.D.R.Ev. 403, because its
prejudicial impact substantially outweighed its probative value. He further argues his Sixth
Amendment right to confront the witnesses against him was violated because the video was
not published during trial and the jurors first viewed the video during deliberation. We
reverse the criminal judgment.
I
[¶2] Ritter’s fifteen-year-old stepdaughter (“the minor”) alleged she felt inappropriate
contact from Ritter. The minor submitted to a forensic interview at the Children’s
Advocacy Center. A video of the interview, marked at trial as exhibit one, was discussed
during a pretrial conference. The interview included information about a separate incident
that had occurred in Texas. Defense counsel described the “allegations that Mr. Ritter was
kissing the girls on the mouth . . . she also suggests that they were trying to French kiss” in
Texas. The district court reserved ruling on the admissibility of the video.
[¶3] At trial, defense counsel discussed the contents of the video in his opening
statement. The State called a detective who testified about the occurrence of the interview
and its recording. During cross-examination of the detective, defense counsel questioned
the detective about the minor’s statements made during the interview. The State called the
forensic interviewer, who testified generally about forensic interviews of abused children.
She testified she conducted a forensic interview with the minor in this case and it was
recorded. During cross-examination of the forensic interviewer, defense counsel
questioned the interviewer about the minor’s statements made during the interview.
[¶4] The minor testified about the alleged incident. During cross-examination of the
minor, defense counsel questioned her about statements she made during the interview that
were inconsistent with the statements she made during her testimony. The minor corrected
her testimony to conform with the statements she made during the interview.
[¶5] During the State’s redirect examination of the minor, the State offered the video into
evidence. Defense counsel objected, citing Rule 403, N.D.R.Ev., and arguing the video
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was prejudicial. After the court requested more specificity, counsel initially stated his
objection was not unfair prejudice under Rule 403(a) but confusing the issues under Rule
403(b) in regards to the unrelated incident in Texas. Counsel went on moments later to
broaden the objection, stating “the prejudiced value is outweighed by the probative value.”
The State argued the video was relevant and probative as to the minor’s state of mind and
also would avoid confusion resulting from defense counsel’s repeated references to the
video and its content throughout the trial.
[¶6] The district court explained its ruling in detail:
With respect to the conduct allegedly occurring in Texas, [defense
counsel] specifically elicited testimony about alleged sexual misconduct of
his client occurring in Texas. That clearly opens the door if the defense elicits
the testimony and then claims the testimony and previous consistent
testimony consistent with what he elicited here at trial that that’s unduly
prejudicial — I believe the door has been opened very wide by asking those
questions. And so the Court is going to overrule those objections — or at
least with respect to the Texas allegations — and allow Exhibit 1 to come
into evidence.
....
But that’ll be my ruling for now. I think that’s appropriate under the
facts and circumstances as they’ve been presented here. The 403 objection is
overruled. In particular because this wasn’t brought as a motion in limine or
wasn’t brought before pretrial, so the Court didn’t have the ability to order
[the State] to redact certain portions of the video. Clearly, experienced
counsel on both — for both parties — could have done that and chose not to.
So the Court obviously is under the impression that that evidence should be
in front of the jury.
Clearly, if I would have ruled at the time that that video comes in, and
[counsel] wanted to object, he can contemporaneously object, but the way
that needs to happen at this point is going to be — during the questions, you
can certainly object, and I can rule for the jury whether that objection is
sustained or overruled in real time contemporaneously with the display of the
video, and we’ll proceed that way. If an appropriate jury instruction needs to
be fashioned, we can do that to limit its effect, but it’ll depend on further
rulings of the Court depending on the specific objections.
[¶7] The district court received the exhibit. After the jury returned, the court informed
the jury that a video labeled exhibit one was received into evidence during the recess.
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Neither party published any portion of the video for the jury. Neither party discussed the
video, or asked the witness any further questions regarding the video.
[¶8] The parties agreed to an additional jury instruction: “If the jury wishes to view
Exhibit 1, the jury may send a note to the judge, and arrangements will be made for the
jury to view Exhibit 1 video in a manner arranged by the Court.” Defense counsel did not
object or ask for any further instructions. During jury deliberations, the jury requested to
view the video. The district court brought the jury back into the courtroom and played the
video recording in its entirety for the jury.
[¶9] The jury convicted Ritter of sexual assault. Ritter appeals.
II
[¶10] Ritter argues the district court abused its discretion by admitting video evidence of
the witness’s forensic interview under N.D.R.Ev. 403, because its prejudicial impact
substantially outweighed its probative value.
[¶11] This Court reviews a district court’s evidentiary ruling under an abuse of discretion
standard:
A district court has broad discretion on evidentiary matters, and we will not
overturn its admission or exclusion of evidence on appeal unless that
discretion has been abused. A district court abuses its discretion when it acts
arbitrarily, capriciously, or unreasonably, or when its decision is not the
product of a rational mental process or if it misinterprets or misapplies the
law.
State v. Salou, 2024 ND 6, ¶ 7, 1 N.W.3d 602 (citation omitted).
[¶12] Ritter argues the video is inadmissible under Rule 403, N.D.R.Ev. “The court may
exclude relevant evidence if its probative value is substantially outweighed by a danger of
one or more of the following: (a) unfair prejudice [or] (b) confusing the issues.” N.D.R.Ev.
403 (a)-(b). Ritter does not argue the evidence is irrelevant.
[¶13] “The concept of ‘opening the door’ allows the admission of otherwise inadmissible
testimony to qualify, explain, or limit testimony or evidence previously admitted.” Haas v.
Hudson & Wylie LLP, 2020 ND 65, ¶ 19, 940 N.W.2d 650 (cleaned up). “[A] trial court is
vested with discretion to decide whether a party has opened the door for the admission of
otherwise inadmissible evidence.” State v. Hernandez, 2005 ND 214, ¶ 21, 707 N.W.2d
3
449. Opening the door for the admission of otherwise inadmissible evidence is not
unlimited. Id. A district court’s decision about the extent of an opened door is reviewed
under the abuse-of-discretion standard. Id.[¶14] “When the defendant has opened the door, the court must also consider, under
N.D.R.Ev. 403, whether the probative value of the evidence is ‘substantially outweighed
by the danger of unfair prejudice, confusion of the issues, or misleading the jury[.]’”
Coppage v. State, 2013 ND 10, ¶ 19, 826 N.W.2d 320; see also State v. Hidanovic, 2008
ND 66, ¶¶ 35-37, 747 N.W.2d 463; cf. State v. Aabrekke, 2011 ND 131, ¶ 10, 800 N.W.2d
284 (explaining when evidence of prior crimes, wrongs, or bad acts is admissible under
N.D.R.Ev. 404(b), the court must also consider whether the probative value outweighs any
prejudicial effect); State v. Stewart, 2002 ND 102, ¶ 7, 646 N.W.2d 712 (holding N.D.R.Ev.
609 requires the court determine whether the probative value of evidence of a prior
conviction outweighs its prejudicial effect because a criminal defendant faces the risk that
juries will use the convictions as evidence of the defendant’s propensity to commit crime).
A
[¶15] The doctrines barring a challenge to otherwise inadmissible evidence are known by
various names including “waiver,” “estoppel,” “opening the door,” “invited error,”
“fighting fire with fire,” and “curative admissibility.” See 2 Handbook of Fed. Evid. §
103:4 (9th ed.). Courts and scholars often apply the phrase “opening the door” without
precision to describe these separate doctrines. 21 Charles Alan Wright & Kenneth W.
Graham, Jr., Federal Practice and Procedure § 5039.1 (2d ed. 2019). For example, courts
often use the concept of “opening the door” to describe two different evidentiary
concepts—specific contradiction and curative admissibility. See Francis A. Gilligan and
Edward J. Imwinkelreid, Bringing the Opening the Door Theory to a Close: The Tendency
to Overlook the Specific Contradiction Doctrine in Evidence Law, 41 Santa Clara L. Rev.
807 (2001) (arguing that those two concepts differ and that courts should not treat them as
a single concept at risk of confusing them); see also 21 Fed. Prac. & Proc. Evid. § 5039.1
(2d ed.) (“Writers sometimes confuse opening the door with ‘curative admissibility’—then
apply both as if they were ‘estoppel to object.’”).
[¶16] In State v. Jensen, 282 N.W.2d 55, 68 (N.D. 1979), this Court approved this
“doctrine” by “permitting receipt of otherwise incompetent evidence” and acknowledged
its other names: “fighting fire with fire; or permitting receipt of incompetent evidence when
the adversary has opened the door; or permitting receipt of incompetent evidence under the
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doctrine of curative admissibility.” We have since referred to this doctrine as “rebuttal
evidence” or “opening the door.” See State v. Purdy, 491 N.W.2d 402, 410 (N.D. 1992)
(upholding prior conduct evidence under 404(b) because defendant “opened the door”
during examination by his counsel); State v. Flynn, 479 N.W.2d 477, 480 (N.D. 1992)
(“Because Flynn had placed the matter in issue, the State’s rebuttal evidence was relevant
and the trial court did not err in admitting it.”). Relying on the Eighth Circuit, we have
explained, “[e]vidence that is otherwise inadmissible, may be admitted if the opposing
party opens the door through his testimony and invites any error. The evidence may be
used to ‘rebut the impression left by the opposing party’s own testimony.’” Coppage, 2013
ND 10, ¶ 18 (quoting United States v. Brumfield, 686 F.3d 960, 964 (8th Cir. 2012)).
[¶17] The Eighth Circuit explains, “[t]he doctrine of opening the door allows a party to
explore otherwise inadmissible evidence on cross-examination when the opposing party
has made unfair prejudicial use of related evidence on direct examination.” Nicholson v.
Biomet, Inc., 46 F.4th 757, 765 (8th Cir. 2022) (citations omitted). “The evidence
introduced must be in response to something elicited during the opposing party’s evidence.
In other words, it must actually rebut the initial testimony.” Id. (citations omitted). “In
theory, the admission of inadmissible evidence allows the injured party to cure the problem
and ‘clear up the false impression’ or to ‘clarify or complete an issue opened up by
opposing counsel.’” Valadez v. Watkins Motor Lines, Inc., 758 F.3d 975, 981 (8th Cir.
2014) (cleaned up).
[¶18] “The remedy for improper evidence is not always additional improper evidence.
The doctrine of opening the door is more limited than that. Evidence allowed through the
open door must rebut something that had been elicited.” Valadez, 758 F.3d at 981-82(cleaned up). “The rebuttal evidence offered to cure the error must be commensurate with
the magnitude of the error itself, or the extent to which the door was opened. Otherwise,
courts risk subverting the doctrine of opening the door into a rule for injection of
prejudice.” Id. at 982 (cleaned up); see also United States v. Winston, 447 F.2d 1236, 1240
(D.C. Cir. 1971) (explaining “Opening the door is one thing. But what comes through the
door is another. Everything cannot come through the door.”).
[¶19] In summary, “determining whether a defendant opened the door to particular,
otherwise inadmissible evidence . . . the inquiry is twofold: whether and to what extent, the
evidence . . . said to open the door is incomplete and misleading, and what if any otherwise
inadmissible evidence is reasonably necessary to correct the misleading impression.” 31A
C.J.S. Evidence § 345. Then the district “court must weigh the need for and the value of
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this rebuttal evidence, including whether a limiting instruction to the jury would obviate
the need for any curative admissibility, against the potential for undue delay, confusion and
prejudice.” Id. Because the district court did not determine the extent the door had been
opened, regarding a particular topic, but instead found the door “wide open” and did not
then weigh the danger of prejudice or confusion resulting from the video under N.D.R.Ev.
403, the district court misapplied the law.
B
[¶20] The district court found defense counsel “specifically elicited testimony about
alleged sexual misconduct of his client occurring in Texas” which “clearly opens the door
if the defense elicits the testimony and then claims the testimony and previous consistent
testimony consistent with what he elicited here at trial that that’s unduly prejudicial[.]”
[¶21] During cross-examination of the minor, defense counsel asked:
And you think for some reason [Ritter] came over and dry-humped you?
A. Yes. Because he does like to kiss me on the mouth and grab me on the
butt when my mom is around. And then my mom doesn’t talk to me for a
few hours because of it.
Q. He kisses you on the mouth and grabs your butt?
A. Yes.
Q. When did this occur?
A. When we were living in Texas.
Q. Did he do it when you lived in North Dakota?
A. No. Because I tried my best to just stay far — just stay away.
Q. I want to be clear, you’re alleging he grabbed your butt in Texas?
A. Yes.
[¶22] Counsel did not object to—or move to strike—the minor’s statements about Ritter’s
attempts to kiss her on the mouth or grab her butt. The minor’s testimony did not contradict
the statements she made in the video. The district court found “by asking [these] questions”
“the door has been opened very wide[.]”
[¶23] An “open door” must be limited. Here, the court found counsel opened the door to
the “Texas allegations” by “specifically elicit[ing] testimony about alleged sexual
misconduct of his client occurring in Texas.” In this case, the testimony presented specific
conduct, namely kissing the minor on the mouth and grabbing her butt. Presumably, the
court found the door was opened in regards to that specific conduct. “Opening the door”
requires a topic by topic assessment. See Valadez, 758 F.3d at 981-82 (“[A] minor mistake
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by one party does not give permission to an opposing party to admit any and all otherwise
inadmissible evidence that it so desires.”).
[¶24] However, Ritter argues the video contains “numerous allegations of abuse or sexual
contact by [Ritter] and others.” At trial, Ritter’s counsel argued the whole video is
inflammatory and prejudicial because it includes multiple allegations of abuse and sexual
abuse from multiple individuals. Defense counsel’s original objection during the pretrial
conference focused on this Texas allegation—kissing on the mouth and touching the
minor’s butt. Later, during the trial, counsel identified two specific allegations of sexual
abuse—one against Ritter in Texas, and another against the minor’s brother. The court
addressed these two specific allegations regarding sexual abuse in its findings. The court
reserved ruling on the issue of the brother, explaining counsel could object
contemporaneously. The court found Ritter’s questions about the Texas incident opened
the door to the video. The court specifically explained it had not reviewed the video.
[¶25] Our review of the video shows it contains allegations of both physical and sexual
abuse by Ritter and other individuals. In the video, the minor discussed several specific
instances of alleged sexual contact by Ritter, and others, and other generalized instances of
Ritter “kissing her on the mouth and touching her butt.” The video contains multiple
separate allegations of both physical abuse and sexual contact, some in Texas and some in
North Dakota, some by Ritter and some by other individuals. The district court did not
assess each of these instances. The district court’s finding did not address the instances of
physical abuse by Ritter and other individuals. The district court’s findings did not address
the overall “inflammatory nature” of the video containing multiple instances of physical
and sexual abuse by multiple individuals.
[¶26] The district court did not decide whether the video’s probative value was
substantially outweighed by danger of unfair prejudice or confusion. Instead, the court
found Ritter opened the door to the Texas allegation by eliciting testimony from the minor
regarding the incident, and allowed the entirety of the video into evidence. Having found
the door to be opened, the court must next weigh the probative value against any prejudicial
effect under Rule 403, N.D.R.Ev. Coppage, 2013 ND 10, ¶ 19. It is clear the court did not
weigh the prejudicial impact of the video because the court had not viewed the video.
[¶27] Prejudice is the cornerstone of the “open the door doctrine,” and must be assessed
on both sides. See Valadez, 758 F.3d at 982. The district court failed to do so here. First,
the doctrine allows otherwise inadmissible evidence to be used to “rebut the impression
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left by the opposing party’s own testimony,” Coppage, 2013 ND 10, ¶ 18, or to clear up a
false impression or to clarify or complete an issue opened up by opposing counsel, Valadez,
758 F.3d at 981. The minor’s testimony conformed to her statement in the video. The video
was offered by the State because defense counsel continued to reference the video. The
video was not being offered to cure a false impression or remedy prejudice. Ritter had not
made “unfair prejudicial use of related evidence [during] examination.” Nicholson, 46
F.4th at 765. Without any apparent confusion of issues, or a false impression, the probative
value of the video, if any, is significantly diminished.
[¶28] Nor was the danger of prejudice or confusion of admitting the video weighed against
its probative value. Specifically, the district court did not view any of the video. No offer
of proof was made regarding each instance of alleged misconduct by Ritter, or others, by
either party. To weigh one item of evidence relative to another, the court must have
adequate knowledge about each item. The danger of unfair prejudice, therefore, could not
have been effectively weighed. The district court abused its discretion by failing to weigh
the probative value against the likely prejudicial effect of the video, and admitting the
entirety of the video into evidence.
III
[¶29] To the extent the State argues Ritter invited the error, we disagree. We have
explained that statements made during opening argument may open the door to
admissibility. See Flynn v. Hurley Enterprises, Inc., 2015 ND 58, ¶ 15, 860 N.W.2d 450;
see also State v. Burgard, 458 N.W.2d 274, 279 (N.D. 1990); State v. Reinart, 440 N.W.2d
503, 507 (N.D. 1989); M. Ahlen, Opening Statements in Jury Trials: What are the Legal
Limits, 71 N.D. L. Rev. 701, 717 (1995). However, promising the jury it will see a video
does not open the door to the admissibility of the entirety of the video, nor does it invite
later error by the court in admitting it. Furthermore, defense counsel objected to the
admittance of the video when it was offered. Therefore, the error was not waived or invited.
IV
[¶30] We reviewed the parties’ remaining arguments and conclude they are either without
merit or not necessary to our decision. The district court abused its discretion by admitting
the entirety of the video over Ritter’s objection. We reverse the criminal judgment.
[¶31] Jon J. Jensen, C.J.
Daniel J. Crothers
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Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr
9