STATE v. BARTLETTE (2026)

[¶1] Donald Bartlette appeals from a criminal judgment entered after a jury found him guilty of manslaughter. He argues the district court erred in denying his motion for mistrial and in admitting evidence of a prior bad act without adequate notice and without conducting the analysis N.D.R.Ev. 404(b) requires. We conclude the court erred by not making a N.D.R.Ev. 403 determination on the record, but the error was harmless. We affirm.

I

[¶2] In October 2024, the State charged Bartlette with murder, alleging he caused the death of Anthony Kiehl. During trial the State amended the information to charge only that Bartlette willfully caused Kiehl's death under circumstances manifesting extreme indifference to the value of human life. The district court held a five-day jury trial from August 19 to 25, 2025. Bartlette primarily argued to the jury that he acted in self-defense.

[¶3] On August 19, 2025, after jury selection but before opening instructions and statements, the State notified the district court that on August 12, 2025, it had served and attempted to file a notice of intent to introduce evidence under N.D.R.Ev. 404(b) (“Notice”). The State explained that the clerk initially rejected the Notice “because there was color ink on it”; that it refiled the Notice the next day; and that the clerk rejected the second filing as well, but never notified the State of that rejection. The State asserted that it believed the court accepted the second filing and that it did not learn of the second rejection until the first day of trial. The Notice was filed on August 19, 2025.

[¶4] The Notice stated that the State intended to introduce evidence under Rule 404(b) of Bartlette's prior assault on Kiehl through the testimony of Kiehl's sister, Lori Harris (formerly Lori Garcia), and a jail call in which Bartlette admitted the assault. The State asserted that the prior-assault evidence was admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, and that its probative value exceeded its prejudicial effect. Bartlette opposed admitting the evidence, arguing it was exactly the type of evidence the rule was designed to exclude: evidence of a prior bad act used to show a propensity to commit such acts. The court reserved ruling on the State's request until it had time to review the Notice fully and conduct the Rule 404(b) analysis.

[¶5] On August 20, 2025, the State called Kiehl's friend Rosetta Gourd as a witness. When the State asked how she knew Bartlette, Gourd responded, “He's a bully.” Bartlette objected, and the district court sustained the objection as “nonresponsive.” Later, on redirect, when the State asked Gourd why Kiehl would allow Bartlette into Kiehl's apartment despite fearing him, she answered, “Because they used to do drugs together.” The State followed up by asking what kind of drugs, and Gourd answered, “Meth.” Bartlette objected, and the court sustained the objection and struck the “Meth” response. After two more witnesses testified, Bartlette moved for a mistrial, arguing Gourd's responses were prejudicial character evidence. The court denied the mistrial motion, noting it had sustained the objections and struck the “Meth” response, and offered to provide a curative instruction if requested.

[¶6] On August 21, 2025, the district court addressed the Notice. The court found the State's reason for the late notice—being unaware the Notice had not been filed—provided good cause to excuse the lack of pretrial notice. The State then clarified that it did not intend to offer the jail call itself, but rather testimony about the call from a law enforcement officer. After further argument by counsel, the court granted the State's request, allowing the Rule 404(b) evidence of Bartlette's prior assault on Kiehl. The court found the prior-assault evidence was not offered to show that Bartlette acted in accordance with a character trait, but rather to prove motive, intent, or absence of mistake or accident. The court found that the prior-assault evidence was substantially reliable and that there was independent proof of Bartlette's guilt, as the three-step analysis requires.

[¶7] On August 22, 2025, Harris testified that she was aware that Bartlette had beaten Kiehl before Kiehl's death, that Kiehl was “scared” of Bartlette, and that Kiehl befriended Bartlette so that Bartlette would “quit beating him up.” After this direct examination, Bartlette objected to Harris's testimony on the ground that it exceeded the scope of the Notice. The district court overruled the objection. On cross-examination, Harris testified that Bartlette told her that Kiehl hit Bartlette with a stick and Bartlette beat Kiehl up. Detective Michael Jennings testified that one of the jail calls contained Bartlette's admission that he had previously assaulted Kiehl. Detective Jennings testified that Bartlette said Kiehl came at Bartlette with a branch or stick and that Bartlette then “knock[ed] out” Kiehl.

[¶8] The jury found Bartlette not guilty of murder and guilty of the lesser included offense of manslaughter. The district court sentenced Bartlette to ten years’ imprisonment with credit for time served and entered judgment.

II

[¶9] Bartlette argues the district court erred in denying his motion for mistrial “where the prosecutor's witness raised 404(b) evidence.” Although Bartlette frames the issue on appeal as “prosecutorial misconduct,” he argued to the district court that a mistrial was warranted because the jury heard prejudicial character evidence. Because Bartlette did not raise prosecutorial misconduct in the district court and has not argued obvious error on appeal, we do not address it. We consider only his preserved argument that the court erred in denying his mistrial motion. See State v. Samaniego, 2022 ND 38, ¶ 16, 970 N.W.2d 222 (declining to address prosecutorial misconduct when it is raised for the first time on appeal and the appellant has not argued obvious error); see also State v. Thompson, 2025 ND 3, ¶ 11, 16 N.W.3d 204.

[¶10] Our standard for reviewing the denial of a mistrial motion is well established:

A district court has broad discretion in ruling on a motion for a mistrial and will not be reversed on appeal unless the court clearly abused its discretion or a manifest injustice would occur. An abuse of discretion may occur when the district court misinterprets or misapplies the law, or when the district court acts in an arbitrary, unreasonable, or capricious manner. A mistrial is an extreme remedy which should be granted only when there is a fundamental defect or occurrence in the proceedings that makes it clear that further proceedings would be productive of manifest injustice.

State v. Pailing, 2019 ND 283, ¶ 7, 936 N.W.2d 78 (cleaned up).

[¶11] Bartlette argues the district court erred by denying his mistrial motion after Gourd testified that “[h]e's a bully” and that he used “[m]eth” with Kiehl. The court sustained both objections to Gourd's testimony, struck the meth response, and offered to give a curative instruction if Bartlette requested one. The only remaining question is whether denying the further remedy of a mistrial was an abuse of discretion or would result in a manifest injustice.¹ Bartlette contends the two responses, viewed together, were so prejudicial that sustaining the objections, striking the meth testimony, and offering a curative instruction could not cure the harm. He asserts the responses painted him as a “violent, drug-using bully who preyed upon the victim,” which “directly undermined [his] self-defense assertion.”

[¶12] In State v. Patterson, the defendant was charged with delivery of cocaine near a school. 2014 ND 193, ¶ 2, 855 N.W.2d 113. At trial, the confidential informant testified that the defendant previously sold cocaine. Id. ¶ 5. After the defense objected, the district court sustained the objection, struck the statement, and instructed the jury to disregard the testimony. Id. On appeal, this Court concluded the defendant failed to show the district court committed obvious error by declining to declare a mistrial because the statement was an isolated incident, substantial evidence of guilt existed, the court gave a curative instruction, and the defendant showed no substantial prejudice. Id. ¶ 9.

[¶13] By contrast, in State v. Blotske, we concluded the district court abused its discretion in denying a mistrial motion when a series of errors concerning highly prejudicial prior-bad-act statements had a cumulative prejudicial effect:

Based upon the State's disclosure of unduly prejudicial statements, the State being permitted to address the jury mid-trial on the disclosure, the district court discussing the disclosure and permitting the State to make additional comments on the disclosure before the jury, the cumulative effect of the errors in this case warrants reversal and remand for a new trial. Disclosure of allegations of child molestation during a trial for a sex offense is highly prejudicial.

2017 ND 190, ¶ 17, 899 N.W.2d 661.

[¶14] Here, the “bully” comment was nonresponsive—a volunteered characterization that the district court immediately addressed by sustaining the objection. As to the meth testimony, the State argued in the district court that the defense on cross-examination asked why Kiehl would invite into his apartment a man he feared, and that the question on redirect was legitimate despite leading to an unanticipated response. On this record, the questioning on redirect was reasonably responsive to what the defense raised on cross-examination, and neither question was objected to by Bartlette. The court's remedies for the nonresponsive answers were not an abuse of discretion.

[¶15] This case is more like Patterson than Blotske. The challenged testimony—from one witness during a five-day trial—was brief and not unduly prejudicial. See also State v. Bazile, 2022 ND 59, ¶ 8, 971 N.W.2d 884. Bartlette objected to both responses, the district court sustained both objections, and it struck the meth testimony. “A jury is generally presumed to follow instructions, and a curative instruction to disregard certain evidence is generally sufficient to remove improper prejudice.” Patterson, 2014 ND 193, ¶ 8, 855 N.W.2d 113. The court offered Bartlette a curative instruction, but he never requested one. See State v. Rodriguez, 454 N.W.2d 726, 730 (N.D. 1990) (“[W]hen defense counsel moves for a mistrial because of the prejudicial effect of the defect or occurrence, counsel must ordinarily ask the trial court to give the jury a cautionary instruction in order to properly preserve the question for appellate review.”). The evidence of guilt independent of the character evidence was substantial, including video and DNA evidence, the physical injuries to Kiehl and Bartlette, and Bartlette's own statements. See Patterson, ¶ 9. We conclude the court did not abuse its discretion in denying Bartlette's motion for mistrial.

III

[¶16] Bartlette argues the district court erred in admitting evidence of his prior assault on Kiehl and in admitting it without the notice N.D.R.Ev. 404(b) requires. Rule 404(b) states:

(1) Prohibited Uses. Evidence of any other crime, wrong, or 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.

(2) Permitted Uses. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.

(3) Notice in a Criminal Case. In a criminal case, the prosecutor must:

(A) provide reasonable notice of any such evidence that the prosecutor intends to offer at trial, so that the defendant has a fair opportunity to meet it;

(B) articulate in the notice the permitted purpose for which the prosecutor intends to offer the evidence and the reasoning that supports the purpose; and

(C) do so in writing before trial or in any form during trial if the court, for good cause, excuses lack of pretrial notice.

We review the admission of Rule 404(b) evidence for an abuse of discretion. State v. Shaw, 2016 ND 171, ¶ 5, 883 N.W.2d 889.

A

[¶17] Bartlette contends the Notice was procedurally deficient under N.D.R.Ev. 404(b)(3), which requires pretrial notice in criminal cases, absent good cause. He argues the Notice was untimely: although the State first attempted to file it seven days before trial, the clerk rejected both attempts, the State never confirmed that the clerk received it, and the district court did not see it until the first day of trial. He further argues “good cause” under Rule 404(b)(3)(C) was absent because the State had the information for months but waited until a week before trial to attempt filing. He also argues he was prejudiced: although counsel had been served, counsel had not opened the Notice and so had no meaningful opportunity to investigate or prepare for the prior-assault evidence.

[¶18] The State responds that the record supports the good-cause finding: it attempted to file twice, received no error notification on the second attempt, and served the Notice on the defense before trial, though the defense did not review it.

[¶19] The district court found the State's explanation—a technical clerk rejection without notification—credible and accepted it as a representation by an officer of the court. The State served the defense with the Notice before trial, and the defense had a full opportunity to argue the substance before the court ruled; the witnesses who testified on the subject did not take the stand until several days into trial. Bartlette has not explained how the untimely filing prejudiced him—how his trial strategy would have changed or what further investigation he would have conducted. We conclude the court did not abuse its discretion in finding good cause for the lack of pretrial notice.

B

[¶20] Bartlette argues the district court failed to rigorously apply the three-step analysis in determining whether to admit evidence of the prior assault and omitted the mandatory Rule 403 balancing. Under the three-step analysis, a district court admitting Rule 404(b) evidence must (1) identify a non-character purpose; (2) find the evidence substantially reliable or clear and convincing; and (3) in a criminal case, find sufficient independent proof of guilt. State v. Alvarado, 2008 ND 203, ¶ 14, 757 N.W.2d 570; State v. Aabrekke, 2011 ND 131, ¶ 9, 800 N.W.2d 284. The court must then assess whether, under N.D.R.Ev. 403, the probative value is substantially outweighed by a danger of unfair prejudice. Alvarado, ¶ 19; Aabrekke, ¶ 10. Bartlette contends the court's oral ruling satisfied the three steps only perfunctorily and contained no Rule 403 analysis.

[¶21] Bartlette argues the district court's stated purpose—proving motive, intent, absence of mistake, or lack of accident—does not fit the evidence. The State asserts the evidence provided a more complete story of Bartlette's conduct, Kiehl's state of mind (his fear of Bartlette), and the two men's relationship. See Alvarado, 2008 ND 203, ¶ 16, 757 N.W.2d 570 (noting evidence of prior conduct is admissible to provide “a more complete story of the crime by putting it in context of happenings near in time and place”).

[¶22] The prior assault involved Kiehl hitting Bartlette with a branch or stick and Bartlette responding by “knocking out” Kiehl. If, as Bartlette asserts, both incidents followed the same pattern—Kiehl initiating, Bartlette responding—the prior incident tends to support his self-defense claim rather than undercut it. Defense counsel made this precise argument to the court before its oral ruling.

[¶23] Although Bartlette primarily argued self-defense, that was not the only defense he advanced before the district court ruled on the Rule 404(b) evidence. In his opening statement, defense counsel stated, “This was the worst possible accident and, unfortunately, Anthony Kiehl, Donald Bartlette's friend, is dead.” Defense counsel asked Dr. Kevin Whaley—the forensic pathologist who performed the autopsy on Kiehl—whether punching was an effective means of killing someone and “[i]f it was the puncher[‘s] intent to kill?” Those questions challenged the State's contention that Bartlette willfully caused Kiehl's death. Dr. Whaley testified that he was aware both Seroquel and the table legs were items of interest and that he had tested Kiehl's blood for Seroquel. FBI forensic examiners testified that they tested the table legs for DNA and fingerprints. After the court ruled on the admissibility of the Rule 404(b) evidence, Detective Jennings testified that in Bartlette's jail calls, Bartlette claimed “he had personally witnessed Mr. Kiehl take[ ] several Seroquel pills and that that is actually what must have killed Mr. Kiehl[,] not getting punched by Mr. Bartlette.” Jennings testified that in one of the jail calls Bartlette stated law enforcement would find Gourd's “fingerprints all over the table legs,” which suggested she had a role in Kiehl's death.

[¶24] In addition to claiming self-defense, Bartlette sought to cast doubt on how Kiehl died and who or what caused that death. The prior-assault evidence showed not only that Bartlette knew Kiehl, but also that the two had a prior violent encounter—evidence bearing directly on the defense's claim in the opening statement that Kiehl's death was an unexpected accident. The district court identified the specific non-character purposes on which it relied—motive, intent, or absence of mistake or accident—and although it said little more, its oral ruling came at the end of the third day of trial, after it had heard defense counsel's opening statement and evidence illuminating the potential theories of the case. On this record, we can discern the ground for the court's ruling. See Caster v. State, 2019 ND 187, ¶ 6, 931 N.W.2d 223 (“[T]his Court ordinarily remands unless we can discern the rationale for the result reached by the district court through inference or deduction.”). We conclude the court did not abuse its discretion in finding a non-character purpose.

[¶25] The district court also did not abuse its discretion in finding that the prior-assault evidence was substantially reliable and that sufficient independent evidence of guilt existed. The State's proffered evidence included Harris's and Detective Jennings's testimony that Bartlette himself admitted the assault. The evidence of guilt independent of the prior assault was substantial: video and DNA evidence, the injuries to Kiehl and Bartlette, and Bartlette's own statements. The court also gave the jury a cautionary instruction:

For the purpose of showing motive, intent, identity, scheme or plan, or absence of mistake or accident with respect to the offense charged, the Court received evidence of other prior acts committed by the Defendant. Before considering evidence of other prior acts for this purpose, you must first find beyond a reasonable doubt that the Defendant committed the acts.

See Shaw, 2016 ND 171, ¶ 8, 883 N.W.2d 889 (“Generally, the third step is satisfied with a cautionary jury instruction about the admissibility of the evidence and its use for a limited purpose.”).

[¶26] The district court's ruling, however, contained no language weighing the evidence's probative value against the danger of unfair prejudice. Rule 403 balancing is not subsumed in the three-step analysis; it is a separate required step. See State v. Gaede, 2007 ND 125, ¶ 26, 736 N.W.2d 418 (“If a district court concludes this three-part test has been satisfied, the evidence is not automatically admissible, and the court must also consider whether, under N.D.R.Ev. 403, the probative value of the evidence outweighs any possible prejudicial effect.”). Citing Smith v. State, 2025 ND 189, ¶ 15, 27 N.W.3d 435, and State v. Halsey, 2022 ND 31, ¶ 21, 970 N.W.2d 227, the State argues that any such error is harmless when independent evidence is strong. Independent evidence of guilt does not substitute for Rule 403 balancing, because a case with strong independent evidence might still involve Rule 404(b) evidence whose character-inference risk substantially outweighs its incremental probative value. We conclude the court abused its discretion by failing to make the Rule 403 determination on the record. The absence of an express Rule 403 finding does not compel reversal. That error remains subject to harmless-error analysis. State v. Dieterle, 2013 ND 130, ¶¶ 12–13, 833 N.W.2d 473; Halsey, ¶ 21. Our decision in State v. Ritter, 2024 ND 142, ¶ 28, 10 N.W.3d 119, is not to the contrary. In Ritter, the court admitted a video in its entirety, but “did not view any of the video”; thus it was not merely a failure to explain its Rule 403 balancing on the record but a failure to acquire the information necessary to conduct such balancing. Id. ¶ 28.

[¶27] “Any error, defect, irregularity or variance that does not affect substantial rights must be disregarded.” N.D.R.Crim.P. 52(a). Error under Rule 404(b) is subject to harmless-error analysis, and reversal is warranted only if the admitted evidence was “so prejudicial that substantial injury occurred” and, absent the error, “a different decision would have resulted.” Dieterle, 2013 ND 130, ¶ 12, 833 N.W.2d 473 (quoting State v. Stewart, 2006 ND 39, ¶ 17, 710 N.W.2d 403). We have applied that standard to a district court's failure to complete the required Rule 404(b) analysis and Rule 403 balancing, holding the omission harmless when sufficient evidence supports the conviction independent of the prior-acts evidence. Halsey, 2022 ND 31, ¶ 21, 970 N.W.2d 227.

[¶28] We conclude the error is harmless. First, the risk of prejudice is low on these facts because the evidence describing the prior incident showed Kiehl striking the first blow—limiting the character-inference risk that the jury would reason “he beat someone up before, so he did it again.” Second, the prior-assault evidence the jury heard was limited to a few statements by Harris and Detective Jennings. The most inflammatory statement disclosed in the State's Notice was never placed before the jury. Third, ample evidence supports the conviction independent of the prior-assault evidence. Fourth, the district court instructed the jury to consider Bartlette's prior acts, including the prior assault, only after finding beyond a reasonable doubt that he committed those prior acts. See Patterson, 2014 ND 193, ¶ 8, 855 N.W.2d 113 (“A jury is generally presumed to follow instructions ․”); cf. Shaw, 2016 ND 171, ¶ 17, 883 N.W.2d 889 (concluding the district court's failure to conduct the requisite analysis under Rules 404(b) and 403 and to provide a cautionary jury instruction on the limited purpose of the evidence was not harmless error). Finally, the jury found Bartlette guilty of manslaughter rather than the charged extreme-indifference murder. On this record, we cannot say the prior-assault evidence was so prejudicial that substantial injury occurred, or that a different decision would have resulted had the evidence been excluded. We conclude the district court did not commit reversible error by admitting evidence of Bartlette's prior assault.

IV

[¶29] We affirm the criminal judgment.

FOOTNOTES

1.   In its appellee brief, the State “concedes that Gourd calling Bartlette ‘a bully’ is character evidence under 404(a) and that Gourd stating Kiehl and Bartlette used to do drugs together is prior bad act evidence under 404(b).” We agree. Whether those answers were inadmissible for lack of a permitted use is a separate question we need not decide, because the court's remedies were adequate in any event. Bartlette's contemporaneous objections did not reference N.D.R.Ev. 404, but his motion for a mistrial on grounds of impermissible character evidence preserved the mistrial ruling for appeal.

Tufte, Justice.

[¶30] Lisa Fair McEvers, C.J. Jerod E. Tufte Jon J. Jensen Douglas A. Bahr Mark A. Friese