Background
In December 2024, a McKenzie County Sheriff’s deputy stopped Colton Kenneth Defoe’s vehicle and detained him on an outstanding warrant. After clearing passengers, the deputy deployed a K-9 unit, which alerted to narcotics. A search of the vehicle uncovered a plastic baggie containing a white crystalline substance in the driver’s side visor, a bindle containing a powdered substance, and a plastic tube with burn marks in the center console. Defoe and the passengers denied possession of all items. Testing revealed methamphetamine residue in the baggie and 0.367 grams of methamphetamine in the bindle; the tube yielded an insufficient sample for conclusive testing. Although officers initially suspected the bindle contained gabapentin, no gabapentin was detected.
Defoe was charged with unlawful possession of methamphetamine, unlawful possession of drug paraphernalia, and driving under suspension. Two additional counts were dismissed before trial. At trial, Defoe moved for acquittal under N.D.R.Crim.P. 29, arguing insufficiency of the evidence on the methamphetamine and paraphernalia charges, but he did not object to the jury instructions. When the district court reviewed the instructions with counsel, Defoe affirmatively stated “no objection” to each instruction except one regarding his suspended license notice, which was not appealed. The jury convicted on all three counts, and the district court entered criminal judgment. Defoe appealed, arguing the jury instructions were plainly erroneous for failing to clarify which specific item or substance supported the methamphetamine possession charge, and that the evidence was insufficient to convict.
The Court’s Holding
The North Dakota Supreme Court affirmed the criminal judgment. Writing for the majority, Chief Justice Fair McEvers first addressed the jury instruction challenge. The Court held that Defoe failed to preserve the issue for appeal because he did not object to the instructions at trial, and his Rule 29 motion for acquittal—based on insufficiency of the evidence—did not encompass objections to the jury instructions. Under N.D.R.Crim.P. 30(c), preservation requires a distinct objection on the record; Defoe’s affirmative statement of “no objection” did not satisfy this requirement.
Reviewing for plain error under N.D.R.Crim.P. 52(b), the Court found no error, let alone plain error. The preliminary instruction described the charge as possession of a “white crystalline substance suspected to be methamphetamine,” while the final instruction required the jury to find beyond a reasonable doubt that Defoe “willfully possessed methamphetamine.” The Court concluded these instructions accurately stated the law. Because the gabapentin allegation had been dismissed and both containers were shown to contain methamphetamine, the jury was not asked to choose between substances, and the court was not required to instruct the jury that both containers held methamphetamine or to identify which container held which substance.
Regarding sufficiency of the evidence, the Court applied the standard requiring the defendant to show no reasonable inference of guilt when viewing the evidence in the light most favorable to the verdict. Finding substantial evidence supported the verdicts, the Court summarily affirmed under N.D.R.App.P. 35.1(a)(3).
Justice Friese, joined by Justice Jensen, concurred. He agreed that sufficient evidence supported the convictions and that Defoe had not demonstrated jury instruction error, but wrote separately to highlight the Court’s inconsistent application of waiver versus forfeiture in jury instruction cases. He argued that Defoe’s “no objection” statement constituted forfeiture, not waiver, and that review was properly limited to plain-error analysis under N.D.R.Crim.P. 30(d)(2). He urged the Court to overrule recent cases, including State v. Studhorse, that treat mere failure to object as waiver foreclosing review, but acknowledged that because the parties had not asked the Court to revisit those precedents, it was appropriate to await another case.
Key Takeaways
- A defendant’s statement of “no objection” to jury instructions constitutes forfeiture, not waiver, preserving the issue for plain-error review under N.D.R.Crim.P. 30(d)(2) and 52(b).
- Jury instructions that accurately state the essential elements of an offense do not constitute plain error merely because they do not specify which physical container held the controlled substance when multiple containers are admitted into evidence.
- A motion for acquittal under N.D.R.Crim.P. 29 based on insufficiency of the evidence does not preserve objections to jury instructions for appellate review.
- The North Dakota Supreme Court has inconsistently applied waiver versus forfeiture doctrines in jury instruction cases, with a concurring opinion urging the Court to overrule recent precedents that treat failure to object as waiver.
Why It Matters
This decision clarifies the distinction between forfeiture and waiver in the context of jury instruction objections, reinforcing that a defendant who fails to object—or affirmatively states “no objection”—does not forfeit appellate review entirely but is limited to plain-error review. The majority’s application of this standard provides guidance for trial counsel on preserving instructional error and for appellate practitioners on framing arguments when objections were not raised below.
The concurrence signals potential future doctrinal shifts, explicitly calling for the Court to overrule recent cases that have treated mere acquiescence as waiver. Attorneys practicing in North Dakota should monitor this issue, as the Court appears poised to reconsider its waiver jurisprudence in an appropriate case, potentially expanding the scope of review for unpreserved jury instruction claims.