Background
Theresa Lee Busche was convicted by a jury of disorderly conduct — offensive condition under N.D.C.C. § 12.1-31-01(1)(g) in the District Court of Barnes County, Southeast Judicial District. Judge Nicholas D. Thornton presided over the trial.
Busche appealed the resulting criminal judgment on two grounds: first, that the evidence was insufficient to support the jury’s guilty verdict; and second, that the district court committed reversible error by sustaining a State’s objection that excluded certain testimony. The North Dakota Supreme Court considered both claims under summary affirmance procedures.
The Court’s Holding
The court rejected Busche’s sufficiency-of-the-evidence challenge, applying the well-established standard that a defendant bears the burden of showing the evidence reveals no reasonable inference of guilt when viewed in the light most favorable to the verdict. After reviewing the record, the court concluded the evidence was sufficient to sustain the conviction and summarily affirmed under N.D.R.App.P. 35.1(a)(3).
The court also rejected Busche’s evidentiary claim on preservation grounds. To preserve an error based on excluded evidence, a party must make an offer of proof at the time of the ruling. When the district court sustained the State’s objection, defense counsel made no offer of proof. Because Busche failed to preserve the issue and did not brief it as obvious error, the court declined to review it, summarily affirming under N.D.R.App.P. 35.1(a)(7).
Key Takeaways
- A defendant challenging the sufficiency of evidence on appeal must show that no reasonable inference of guilt exists when the record is viewed in the light most favorable to the verdict — a heavy burden rarely met.
- When a trial court excludes evidence by sustaining an objection, defense counsel must make a timely offer of proof to preserve the evidentiary issue for appellate review; failure to do so waives the claim.
- A defendant who fails to preserve an error and does not brief it as obvious error cannot expect the appellate court to exercise its discretion to notice the error sua sponte.
Why It Matters
This per curiam decision is a straightforward reminder of two foundational appellate practice rules in North Dakota: the high bar for overturning a jury verdict on sufficiency grounds, and the strict requirement to make an offer of proof when evidence is excluded. Defense attorneys who omit that step at trial effectively forfeit appellate review of the ruling.
Though the case turns on routine procedural principles, it reinforces the practical importance of a complete trial record. Appellate courts cannot evaluate the prejudice caused by excluded testimony they have never seen, making the offer-of-proof requirement essential to any meaningful post-trial challenge.