STATE v. SNEDAKER (2026)

[¶1] Carl Snedaker appeals from criminal judgments entered in two underlying cases after a jury found him guilty of one count of gross sexual imposition and two counts of sexual assault in one case, and one count of gross sexual imposition in a subsequent case. Snedaker argues the district court's failure to properly instruct the jury on unanimity of its verdict was reversible error or, alternatively, was obvious error requiring reversal of his convictions. He also argues the court abused its discretion by admitting evidence in violation of N.D.R.Ev. 608, 404(b), and 403. We conclude the district court abused its discretion in allowing rebuttal testimony of C.G. in response to the State's cross-examination of Snedaker. We reverse and remand for further proceedings.

I

[¶2] This appeal involves three separate minor victims—M.K., S.T., and S.S.—who testified at trial to being inappropriately touched by Snedaker while at his hobby farm. In September 2024, the State charged Snedaker with one count of gross sexual imposition (sexual contact, victim under 15) regarding M.K. and three counts of sexual assault (victim 15-18, defendant 22 or older) regarding S.T. The charges regarding S.T. were later amended at trial to dismiss one of the counts and to provide two separate date ranges for the remaining two counts. In November 2024, the State charged Snedaker with two counts of gross sexual imposition (sexual contact, victim under 15) regarding S.S., but the second count was subsequently dismissed. In April 2025, the district court ordered the cases to be joined for trial.

[¶3] In October 2025, the district court held a three-day jury trial. During trial, the court received exhibits and testimony from the victims—M.K., S.T., and S.S.—M.K.’s mother, S.S.’s mother, the pastor of Snedaker's church, the City of Harvey police chief, and a special agent from the North Dakota Bureau of Criminal Investigation. Snedaker moved for acquittal under N.D.R.Crim.P. 29 at the close of the State's case, and the district court dismissed one of the counts of sexual assault regarding S.T., but denied his motion as to one count regarding M.K., two counts regarding S.T., and one count regarding S.S.

[¶4] Snedaker testified in his own defense at trial. The district court allowed the State to call a rebuttal witness, C.G., for limited testimony in response to Snedaker's testimony on cross-examination. At the close of his defense, he renewed his prior Rule 29 motion which the court again denied.

[¶5] The district court gave the jury instructions, which included definitions and the essential elements for the charged offenses, and a limiting instruction requested by Snedaker. The jury found Snedaker guilty on all four remaining counts. The court denied his subsequent renewed written motion under Rule 29 after trial.

[¶6] In January 2026, the district court sentenced Snedaker, and criminal judgments were entered. Snedaker appealed.

II

[¶7] Snedaker argues that the district court abused its discretion by admitting evidence in violation of N.D.R.Ev. 608, 404(b), and 403, specifically in allowing the State to call C.G. as a rebuttal witness based on the State's cross-examination of Snedaker.

[¶8] We review a district court's evidentiary rulings 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. Ritter, 2024 ND 142, ¶ 11, 10 N.W.3d 119 (quoting State v. Salou, 2024 ND 6, ¶ 7, 1 N.W.3d 602).

[¶9] Snedaker contends that, in allowing the State to call C.G. in rebuttal to attack his credibility, the district court violated N.D.R.Ev. 608(b)’s prohibition on extrinsic evidence, erred in permitting the testimony without the required notice under N.D.R.Ev. 404(b)(3), and improperly weighed the prejudicial value under N.D.R.Ev. 403.

A. Rule 608

[¶10] In State v. Larson, this Court stated that “[t]he rule in North Dakota has long been that where a witness is cross-examined on a collateral issue, the examiner is bound by the answer given on cross-examination and cannot thereafter introduce testimony of a third party for purposes of impeachment or as affecting such witness's credibility.” 253 N.W.2d 433, 436 (N.D. 1977) (emphasis added) (citing State v. Ave, 74 N.D. 216, 21 N.W.2d 352 (1946); State v. Tucker, 58 N.D. 82, 224 N.W. 878 (1929); Becker v. Cain, 8 N.D. 615, 80 N.W. 805 (1899); State v. Haynes, 7 N.D. 70, 72 N.W. 923 (1897)); see also State v. Folk, 278 N.W.2d 410, 415-16 (N.D. 1979) (discussing the Larson case and N.D.R.Ev. 607, holding the trial court in its discretion “may limit the number of witnesses used to impeach one's own witnesses”). The Court in Larson further discussed this long-established rule for when an examiner is bound by a witness's answer on cross-examination:

The North Dakota rule, which is almost universally accepted, is designed to limit an impeachment of a witness by independent proof of a particular act of immorality or wrongdoing, i.e., testimony by other witnesses as to particular instances of wrongdoing. Such rule is designed to prevent the jury confusion which would result from the trial of multiple collateral issues and the waste of time that such collateral inquiries would cause. Such rule also protects a witness from being confronted with unknown and unexpected charges which he could not reasonably be expected to be prepared to defend himself against so as to expose the falsity of the charges.

Larson, at 436. Significantly, the Court added in a footnote that “[f]or the scope of permissible inquiry to impeach a witness, see Rules 607-613, N.D.R.Ev.” Id. at 436 n.1.

[¶11] In State v. McLain, this Court further recognized the ongoing viability of “impeachment by contradiction” after adoption of the North Dakota Rules of Evidence:

Historically, limitations on impeachment by contradiction were imposed by the “collateral” rule extrinsic evidence is not admissible to show a specific contradiction on a matter classified as collateral. Under the North Dakota Rules of Evidence, Rule 403, as applied to impeachment by contradiction, requires courts to exclude the proferred impeachment evidence if its probative value was substantially outweighed by factors such as confusion, prejudice, and waste of time. See Weinstein's Evidence ¶ 607[05].

301 N.W.2d 616, 624 n.2 (N.D. 1981); see also State v. Procive, 2009 ND 151, ¶ 17, 771 N.W.2d 259 (discussing McLain case and 1 Kenneth S. Broun, McCormick on Evidence § 49).

[¶12] “Rule 608(a), N.D.R.Ev., allows a witness's credibility to be attacked through testimony of the witness's reputation for truthfulness or untruthfulness” and “also allows opinion testimony concerning a witness's character.” State v. Polk, 2020 ND 248, ¶ 11, 950 N.W.2d 764. However, N.D.R.Ev. 608(b) establishes “the admissibility of specific instances of conduct for impeachment.” Id. Specifically, N.D.R.Ev. 608(b) precludes a district court from admitting “extrinsic evidence” to prove specific instances of a witness's conduct regarding the witness's character for truthfulness, providing:

(b) Specific Instances of Conduct. Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness's conduct in order to attack or support the witness's character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:

(1) the witness; or

(2) another witness whose character the witness being cross-examined has testified about.

(Emphasis added.) Accordingly, N.D.R.Ev. 608(b) “allows for impeachment by specific instances of conduct not yet resulting in a conviction if they are probative of the character for truthfulness or untruthfulness.” State v. Russell, 2016 ND 208, ¶ 11, 886 N.W.2d 677 (emphasis added) (citing State v. Hoverson, 2006 ND 49, ¶ 31, 710 N.W.2d 890). But while “extrinsic evidence” is not admissible, as we explained, “[s]pecific instances of conduct, excluding criminal convictions under Rule 609, must be inquired into only on cross-examination for impeachment purposes.” Polk, ¶ 11.

[¶13] In addition, courts have held that “[o]n cross-examination, however, the court may allow these instances to be inquired into if they are probative of the witness's character for truthfulness or untruthfulness.” Davis v. Simon Contractors, Inc., 117 F.4th 994, 1002 (8th Cir. 2024) (cleaned up). “The cross-examiner ordinarily must take the answer the witness provides and cannot use extrinsic evidence to prove that the specific bad acts occurred.” Id. (cleaned up) (quoting United States v. Grandison, 781 F.3d 987, 992 (8th Cir. 2015)); see also United States v. Martz, 964 F.2d 787, 789 (8th Cir. 1992) (same); United States v. Whitmore, 359 F.3d 609, 618 (D.C. Cir. 2004) (same). Rule 608(b) also remains subject to balancing under N.D.R.Ev. 403 (stating the court “may exclude relevant evidence if its probative value is substantially outweighed by a danger of ․ unfair prejudice”). State v. Moran, 474 N.W.2d 77, 78-79 (N.D. 1991); see also Davis, at 1002 (citing King v. Ahrens, 16 F.3d 265, 269 (8th Cir. 1994) (“The Rule 403 balancing of probative value versus prejudicial effect is an integral step toward a determination of admissibility under either Rule 404(b) or Rule 608(b).”)).

B. Rule 607 and Impeachment by Contradiction

[¶14] Rule 607, N.D.R.Ev., allows either party to impeach a witness, providing that “[a]ny party, including the party that called the witness, may attack the witness's credibility.”

[¶15] “Impeachment by contradiction” is different from impeaching a witness's reputation for truthfulness or untruthfulness or concerning a witness's character. Rather, it “is a means of policing the defendant's obligation to speak the truth in response to proper questions.” United States v. Gilmore, 553 F.3d 266, 271 (3d Cir. 2009) (cleaned up) (quoting United States v. Greenidge, 495 F.3d 85, 99 (3d Cir. 2007)). Rule 607 authorizes impeachment by contradiction, and Rule 403 governs its application. Id. While Rule 608(b) generally makes extrinsic evidence inadmissible to attack a witness's character for truthfulness, Rule 608(b) “does not address the admissibility of extrinsic evidence used to impeach a witness through contradiction.” United States v. Maxfield, 135 F.4th 1112, 1115 (8th Cir. 2025) (cleaned up).

[¶16] Rule 608(b) does not govern impeachment by contradiction, which is governed by common-law principles. United States v. Perez-Perez, 72 F.3d 224, 227 (1st Cir. 1995). “Impeachment by contradiction ‘permits courts to admit extrinsic evidence that specific testimony is false, because contradicted by other evidence.’ ” United States v. Kincaid-Chauncey, 556 F.3d 923, 932 (9th Cir. 2009) (quoting United States v. Castillo, 181 F.3d 1129, 1132 (9th Cir. 1999)). Impeachment by contradiction is considered a limited or narrow exception “to the collateral fact rule embodied in Federal Rule of Evidence 608(b), which generally prohibits the introduction of extrinsic evidence to attack the credibility of a witness.” Id.; see also United States v. Ramirez, 609 F.3d 495, 499 (2d Cir. 2010). “When impeaching by contradiction, the fact to be contradicted must be material.” Kincaid-Chauncey, at 932 (citing 4 Joseph M. Mclaughlin, Weinstein's Federal Evidence § 608.20[3][a], at 608-38 (2d ed. 1999)); see also State v. Roth, 403 N.W.2d 762, 767 (Iowa 1987), abrogated on other grounds by State v. Campbell, 714 N.W.2d 622 (Iowa 2006) (“To be admissible, impeachment evidence must have been admissible for some proper purpose independent of the contradiction․ Otherwise the impeachment evidence goes only to a collateral issue and is inadmissible.” (citation omitted)).

[¶17] As discussed, North Dakota has recognized the method of impeaching a witness by contradiction. See, e.g., Procive, 2009 ND 151, ¶ 17, 771 N.W.2d 259; McLain, 301 N.W.2d at 624 n.2; cf. Coppage v. State, 2013 ND 10, ¶ 17, 826 N.W.2d 320 (holding N.D.R.Ev. 609 did not apply to the admission of evidence of prior convictions to impeach or contradict “specific testimony” because Rule 609 “only applies to the admission of evidence of prior convictions for purposes of a witness's general character for truthfulness”). Courts have held, however, that this method also has an important limitation: “In general, a witness may be impeached by contradiction only if ‘the statements in issue [have] been volunteered on direct examination.’ ” Kincaid-Chauncey, 556 F.3d at 932 (emphasis in original) (citation omitted). In other words, “extrinsic evidence may not be admitted to impeach testimony invited by questions posed during cross-examination.” Id. (quoting Castillo, 181 F.3d at 1133). As explained,

[W]hen the testimony to be contradicted is offered under cross-examination, impeachment by contradiction is far less likely to achieve its intended purpose of rooting out perjury because “opposing counsel may manipulate questions to trap an unwary witness into ‘volunteering’ statements on cross-examination” and because “it is often difficult to determine whether testimony is invited or whether it is volunteered on cross-examination.”

Id. at 932-33 (quoting Castillo, at 1133-34). Interestingly, however, the court further noted that this “general rule need not ‘be rigidly enforced so as to exclude all impeachment by contradiction of testimony given during cross-examination.’ ” Id. at 933 (quoting Castillo, at 1134 & n.1).

[¶18] In Procive, this Court noted the McLain case had also recognized that “rather than a rigid application of a ‘collateral’ impeachment rule, a court properly considers N.D.R.Ev. 403 in deciding whether the proffered impeachment evidence should be admitted.” 2009 ND 151, ¶ 17, 771 N.W.2d 259. In so recognizing, however, this Court did not specifically retreat from the “general rule” that a witness may be “impeached by contradiction” only when the statements at issue have been volunteered on direct examination. Rather, in Procive, the rebuttal witness had initially been precluded in the State's case-in-chief as a discovery sanction. Id. ¶ 12. The district court subsequently allowed the rebuttal testimony once the defendant had “opened the door” to the rebuttal testimony by testifying in his own defense that he had struck the victim in self-defense, and the defendant was not “unfairly prejudiced” by the court's decision. Id. ¶¶ 22 -25.

C. District Court's Analysis

[¶19] Here, based on the State's arguments, the district court allowed the State to call C.G. as a rebuttal witness after Snedaker testified, in response to the State's questions on cross-examination, that he had never kissed any girl on the lips at his farm, had never engaged in any physical contact with any girls at his farm that could be described as romantic or sexual, and had always encouraged the children at his farm to tell their parents everything. Specifically, after Snedaker testified in his own defense, the State's cross-examination of him included the following exchange:

[MR. BROMKE:] Sure. Okay. So to be clear, you've admitted here that you have had physical contact with girls at your farm. Fair to say? I'm not saying sexual; I'm saying there has been physical contact with girls at the farm?

A It's impossible to teach certain things without physical contact.

Q Okay.

A Even milking the goats. That is correct.

Q Right. But you're saying it was things like a hug or a kiss on the head, right?

A Oh, yes.

Q Anything else was misconstrued? All right.

A There was also affection. Yes.

Q Sure. You want this jury to believe that that's all it ever was?

A Absolutely.

Q Did you ever kiss any girl on the lips at your farm?

A I have not.

Q Have you ever engaged in any kind of physical contact, with any girls at your farm, that could be described as romantic or sexual?

A No.

Q Okay. Are you denying that you ever told any girl to keep what happened a secret and not tell their parents?

A I have always encouraged the kids to tell their parents everything that they do at the farm.

Q Please answer the question I asked you.

A I'm sorry. Go ahead.

Q Are you denying that you ever told any girl to keep what happened at the farm a secret?

A I am denying that.

Q And the contact was always innocent, never intimate, never secretive?

A Absolutely not.

Q Not once? Not with any of them?

A Never ever —

Q Not with any —

A — with anyone.

Q — other girl who spent time at your farm?

A Absolutely.

Q Okay. And just to be clear, I want to make sure I have everything right here. Ms. Kukowski, did she testify accurately to your recollection, with respect to the girls who were at the farm —

A Yeah.

Q — that she knew of?

A Yes.

Q So E.K., M.K., their friend, C.T., the [G.] girls?

A The [G.] girls weren't there.

Q Okay. Not on that day, but they went to your farm?

A Not previously.

MR. BROMKE: Okay. No further questions.

[¶20] Following the State's cross-examination of the defendant, the defense rested its case. The State then gave the district court oral notice of its intent to call C.G. as a witness “solely” in rebuttal to the defendant's testimony:

MR. BROMKE: Your Honor, the State seeks to call [C.G.], solely in rebuttal to the Defendant's testimony. During his testimony, the Defendant stated that he had never kissed anyone on the lips, that he had never done anything of a romantic or sexual nature with any girl that had gone to his farm. He admitted that the [G.] girls came to his farm.

That assertion placed the matter directly in issue. The witness would testify to facts that specifically contradict what he has said. The State couldn't have presented this evidence in its case-in-chief because it was barred by [N.D.R.Ev.] 404, and it also was not able to be criminally charged and added to this case because the incidents in question fall outside the statute of limitations for the type of conduct.

THE COURT: Okay.

MR. BROMKE: So the only context in which her testimony could become relevant and admissible is the result of the Defendant's statements on cross-examination.

THE COURT: All right. I'm certainly going to give you an opportunity to call rebuttal witnesses.

Mr. Mottinger, are you disputing his right to call this witness?

MR. MOTTINGER: I don't think it's appropriate testimony. He certainly had an opportunity to cross-examine Mr. Snedaker. The testimony that he's proposing has nothing to do with these pending charges whatsoever. And if there is any probative value to it in regard to cross-examination, the prejudicial effect far outweighs any probative value of possible questioning along those lines.

MR. BROMKE: Your Honor, if I may, this isn't a collateral issue. This is not tangential to the ultimate issues in this case. It directly goes to one of the central problems of the case, which is Mr. Snedaker's sexual or romantic interest in young people.

Extrinsic evidence is barred for, you know, tangential stuff if it only impeaches on a side detail, but this is directly relevant to the case at hand. I mean, in this case, the Defendant testified under oath that he didn't touch any other girls on the farm, didn't kiss anyone else on the farm in the manner alleged by the victims. He kissed at least some of them and some of the other girls.

The rebuttal testimony the State seeks to introduce from [C.G.] is not about some incidental contradiction. It's direct impeachment of a material assertion that's central to his guilt or innocence. So under North Dakota law, I would say that it's admissible.

THE COURT: All right. Any final response, Mr. [Mottinger]?

MR. MOTTINGER: Judge, this is why we have [N.D.R.Ev.] 403, 404. Obviously, the State didn't give notice.

MR. BROMKE: It's not prior bad acts.

․

MR. MOTTINGER: I don't think it's appropriate, Judge. We don't think it should be allowed. There's no purpose. It's far more prejudicial than anything else. It doesn't really go to anything involving this particular case.

[¶21] After a break, the district court requested further argument from counsel:

THE COURT: ․ So Mr. Bromke, you're offering the evidence as impeachment evidence, credibility issues; is that right?

MR. BROMKE: Yes.

THE COURT: And the evidence that you believe that you will present is what, that he has kissed a young girl on the lips?

MR. BROMKE: Yes.

THE COURT: And any other evidence?

MR. BROMKE: Yes. Kissing, romantic and sexual conversations, spending time at his farm as opposed to a long time ago, perhaps.

․

THE COURT: So you asked him, have you ever — have you kissed a girl on the lips? He said no. Any physical contact, romantic or sexual, was what — I think your question was have you ever had any physical contact romantic or sexual, and he said no.

Did you tell anyone to keep a secret from their parents, and he said no. And you said, not with any other girl, and he said, no. All right. So impeachment credibility is the issue.

Does the State acknowledge that it[’]s prior bad acts evidence? MR. BROMKE: No. I'm not offering it for that purpose. I'm offering it solely for impeachment purposes. I didn't make a notice of prior bad acts evidence because we received —

THE COURT: So are you offering it for motive, opportunity, intent —

MR. BROMKE: Yes.

THE COURT: — preparation, plan, knowledge? Which ones, because I hate it when lawyers recite the entire rule with all of them and don't specify which one they're offering it under.

MR. BROMKE: Sorry. Let me just pull it up here. Motive, opportunity — opportunity or intent. Intent to bring girls to his farm for this exact purpose. Motive, a sexual interest. Opportunity, because the circumstances under which [C.G.] came to his farm created an opportunity of the same type as some of the other girls who have testified already.

THE COURT: Now, tell me why the probative value is not substantially outweighed by the danger of unfair prejudice?

MR. BROMKE: Because her testimony is going to be very narrowly tailored only to rebut with specificity the testimony that Mr. Snedaker gave at the end of his cross-examination. He made the offer of untruth. He made the statements that are not supported by facts.

․

MR. MOTTINGER: Your Honor, obviously the argument is going to be, well, he did it then, he must have did [sic] it now, or he meant it then, he must have meant it now.

THE COURT: Well, but I mean, we've got — the one that's really bothering me is the kissing on the lips.

MR. MOTTINGER: Right.

[¶22] After further argument, the district court made its final ruling:

THE COURT: ․ All right. Here's my ruling.

I'm not going to allow testimony about the kissing on the lips, but I will allow rebuttal evidence on the romantic or sexual conversations and asking to keep it a secret. Court finds that the prejudicial value for — is not substantially outweighed by the danger of unfair prejudice. The key word there being substantially.

I find that the probative value is high for purposes of intent, motive, and impeachment. While the prejudicial value certainly is there, it's not substantially outweighed by the danger of unfair prejudice because it doesn't involve sexual contact in any manner. Well, the kissing would potentially be sexual contact. I'm not allowing that. And the telling to keep a secret, that's purely credibility related. That's my ruling.

(Emphasis added.)

[¶23] Subject to this limitation regarding potential sexual contact, the district court allowed the State to call C.G., now an adult, to testify in rebuttal to the defendant's testimony on cross-examination. C.G. testified, in part:

[MR. BROMKE:] Did you spend time at Mr. Snedaker's farm at all?

A Yes.

Q Okay. Did you spend social time with Mr. Snedaker off his farm?

A Yes.

Q Okay. When did you stop interacting with Mr. Snedaker? As in, what age did you stop?

A That would be around 17 because we left the church. We didn't really have all that much contact after that.

Q Okay. So all of your contacts with Mr. Snedaker up until today, were they when you were a minor?

A Yes.

Q Okay. Without going into detail, has Mr. Snedaker ever had a conversation with you of a romantic or sexual nature?

A Yes.

Q Okay. How frequently did those occur while you were spending time with him?

A I'd say that they like — once, probably in — like, every time I was around him, something came up.

Q Okay. And how regularly did you spend time with him when you knew him?

A I mean, there was a point where it was probably like once a month or more often.

Q Without going into specifics, did Mr. Snedaker ever physically contact you in a manner that you perceived as romantic or sexual?

A Yes.

Q Okay. Has Mr. Snedaker ever told you to keep conversations, or things that you have done with him, or he has done with you a secret?

A Yes.

Q Did he at any point tell you not to tell your parents?

A He told me not to tell my mother because —

MR. MOTTINGER: Objection.

MR. BROMKE: That's —

THE COURT: Yeah.

MR. BROMKE: — all. Is that sufficient? Okay.

THE COURT: Fine.

MR. BROMKE: No further questions.

(Emphasis added.)

[¶24] The district court's ruling specifically limited C.G.’s rebuttal testimony to “rebuttal evidence on the romantic or sexual conversations and asking to keep it a secret.” The court precluded rebuttal evidence about alleged sexual contact, particularly alleged kissing on the lips.

D. Our Analysis

[¶25] The questions before us are what rationale the district court applied in allowing C.G. to testify, and what rules or doctrines were implicated. In the colloquy with the parties, the only rules specifically referenced were N.D.R.Ev. 404(b) and 403.

[¶26] While the rule was not specifically mentioned in his argument to the district court, Snedaker argued that the State already had the opportunity to cross-examine him, which implicates N.D.R.Ev. 608. Snedaker argues the admission of C.G.’s testimony violated N.D.R.Ev. 608(b) because the State had the opportunity to cross-examine him about his conduct toward C.G. and was bound by his answers, and because evidence contradicting a witness's denial of specific prior conduct is extrinsic of that conduct, regardless if “labeled” as rebuttal evidence. He also argues the district court abused its discretion in balancing the probative value and the prejudicial effect under N.D.R.Ev. 403. He claims the State's asserted purpose was to attack his credibility, the court acknowledged the testimony was highly prejudicial, and the court did not “adequately grapple with the prejudicial effect of testimony from a fourth alleged victim, from an indeterminate time in the past, without any indication of credibility, describing a pattern of behavior identical to what the charged victims described.”

[¶27] The State argues on appeal that Snedaker's argument under Rule 608, even if preserved, is inapplicable because this Court treats “contradiction impeachment” as distinct from “character impeachment,” which is governed by different evidentiary rules. See, e.g., Procive, 2009 ND 151, ¶ 17, 771 N.W.2d 259. The State argues under Procive, impeachment by contradiction is evaluated under Rule 403 and not excluded categorically under Rule 608(b). The State argues admitting limited rebuttal testimony to contradict Snedaker's broad denials was neither error nor obvious error requiring reversal. The State further argues that the basis for offering C.G.’s testimony arose only after Snedaker testified and “opened the door,” under Ritter, 2024 ND 142, ¶¶ 17-19, 26-28, limited to correcting the false or misleading impression his testimony created.

1. Opening the Door

[¶28] Here, the State asserted to the district court that “the only context in which [C.G.’s] testimony could become relevant and admissible is the result of the Defendant's statements on cross-examination.” The State contends Snedaker “opened the door” during the State's cross-examination to the rebuttal testimony. We have recognized the doctrine, noting “the concept of ‘opening the door’ allows the admission of otherwise inadmissible testimony to ‘qualify, explain, or limit’ testimony or evidence previously admitted.” Schwab v. Zajac, 2012 ND 239, ¶ 16, 823 N.W.2d 737. This Court has further explained that “[o]therwise incompetent evidence may be admissible if ‘the adversary has opened the door.’ ” State v. Purdy, 491 N.W.2d 402, 410 (N.D. 1992) (emphasis in original) (quoting State v. Jensen, 282 N.W.2d 55, 68 (N.D. 1979)). In Ritter, we stated:

A trial court is vested with discretion to decide whether a party has opened the door for the admission of otherwise inadmissible evidence. Opening the door for the admission of otherwise inadmissible evidence is not unlimited. A district court's decision about the extent of an opened door is reviewed under the abuse-of-discretion standard.

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.

2024 ND 142, ¶¶ 13-14 (cleaned up). The State did not argue to the district court that Snedaker “opened the door” by testifying. As a result, the State gave the court no opportunity to consider whether Snedaker's testimony, given on cross-examination, actually opened the door. The court had no opportunity to consider whether the statements in issue were volunteered or invited by questions posed by the State during cross-examination. The court made no indication that it was applying its discretion under the doctrine of “opening the door.” “One of the touchstones for an effective appeal on any proper issue is that the matter was appropriately raised in the trial court so it could intelligently rule on it.” State v. Kalmio, 2014 ND 101, ¶ 12, 846 N.W.2d 752 (quoting State v. Cain, 2011 ND 213, ¶ 29, 806 N.W.2d 597). We have explained:

Issues or contentions not adequately developed and presented at trial are not properly before this Court. The purpose of an appeal is to review the actions of the trial court, not to grant the appellant the opportunity to develop new theories of the case. Requiring a party to first present an issue to the trial court, as a precondition to raising it on appeal, gives that court a meaningful opportunity to make a correct decision, contributes valuable input to the process, and develops the record for effective review of the decision.

State v. Eggleston, 2021 ND 120, ¶ 10, 962 N.W.2d 405 (quoting State v. Smestad, 2004 ND 140, ¶ 18, 681 N.W.2d 811 (cleaned up)). We will not consider whether Snedaker's testimony, given on cross-examination opened the door for admission of rebuttal testimony by C.G. The State's argument that Snedaker “opened the door” is therefore unavailing.

2. Rule 608

[¶29] As discussed, under N.D.R.Ev. 608(b), while “extrinsic evidence” is not admissible to prove specific instances of a witness's conduct to attack or support the witness's character for truthfulness, “[s]pecific instances of conduct, excluding criminal convictions under Rule 609, must be inquired into only on cross-examination for impeachment purposes.” Polk, 2020 ND 248, ¶ 11, 950 N.W.2d 764. The district court did not err under N.D.R.Ev. 608 because C.G.’s testimony was not to be introduced for purposes of showing Snedaker's character for being untruthful, but was allowed for other purposes as discussed below.

3. Impeachment by Contradiction

[¶30] After concluding the district court did not err in its application of Rule 608, we turn to the court's analysis under impeachment by contradiction. It appears the court allowed the testimony, at least in part, for this purpose and did conduct a Rule 403 balancing test. However, we cannot discern on this record whether the court considered the propriety of impeachment by contradiction for testimony elicited on cross-examination.

[¶31] For “impeachment by contradiction,” a witness may generally be impeached by contradiction only if the statements in issue have been volunteered on direct examination, rather than cross-examination. Kincaid-Chauncey, 556 F.3d at 932. Here, C.G. was allowed to testify based on testimony elicited by the State during cross-examination. Based on the argument made by the State, it appears that the State asked questions of Snedaker setting a trap, knowing it had C.G., who otherwise would not have been allowed to testify, waiting in the wings to contradict him. The district court conducted a balancing test under Rule 403 and allowed only limited testimony from C.G. As noted in Procive, a “rigid” application of the “general rule” is not always appropriate, and there the court allowed testimony following cross-examination of the defendant based on impeachment by contradiction for multiple reasons, relying not on N.D.R.Ev. 607, but on an exception to hearsay under N.D.R.Ev. 801(d)(2) and the doctrine of opening the door. Procive, 2009 ND 151, ¶¶ 18-22, 771 N.W.2d 259.

[¶32] As previously noted, the district court here did not analyze the doctrine of opening the door and did not explain why it deviated from the general rule. We conclude the court erred by not adequately analyzing or articulating its reasons for allowing impeachment by contradiction on a fact issue raised on cross-examination. In addition, the State's questions to C.G. went too far. We conclude, in this case, the State's questioning of the rebuttal witness regarding physical contact perceived as romantic exceeded the district court's ruling limiting the scope of C.G.’s rebuttal testimony, and the court erred by allowing the testimony. The court abused its discretion in allowing C.G.’s rebuttal testimony about alleged romantic or sexual contact.

4. Rule 404(b)

[¶33] While this error standing alone may have been harmless, we consider the other reasons for which the evidence was offered. The State initially argued to the district court that it was not offering C.G.’s testimony under N.D.R.Ev. 404(b), acknowledged it did not give the required notice under the rule, and acknowledged the testimony would not have been admissible in the State's casein-chief. In a criminal case, a prosecutor must give written notice before trial of the evidence it intends to use at trial or, if the court excuses the lack of pretrial notice for good cause, the notice may be given in any form during trial. N.D.R.Ev. 404(b)(3).

[¶34] The State acknowledged this testimony was being offered as impeachment evidence on credibility and that it would not have been admissible in its case-in-chief under N.D.R.Ev. 404(b). The State argued, “This is not tangential to the ultimate issues in this case. It directly goes to one of the central problems of the case, which is Mr. Snedaker's sexual or romantic interest in young people.” The State later receded from the argument that N.D.R.Ev. 404(b) did not apply, arguing the testimony should be permitted to show intent, motive, and opportunity, all permitted uses under Rule 404(b)(2).

[¶35] Under N.D.R.Ev. 404(b)(1), “[e]vidence 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.” While evidence of other bad acts or crimes may be admissible for other purposes under N.D.R.Ev. 404(b)(2), “this Court has consistently stated that a district court must apply a three-step analysis on the record to determine whether the evidence is admissible. E.g., State v. Aabrekke, 2011 ND 131, ¶¶ 9-10, 800 N.W.2d 284.” State v. Pickens, 2018 ND 198, ¶ 27, 916 N.W.2d 612; see also State v. Van Halsey, 2022 ND 31, ¶¶ 14-15, 970 N.W.2d 227. The three-step analysis provides:

1) the court must look to the purpose for which the evidence is introduced; 2) the evidence of the prior act or acts must be substantially reliable or clear and convincing; and 3) in criminal cases, there must be proof of the crime charged which permits the trier of fact to establish the defendant's guilt or innocence independently on the evidence presented, without consideration of the evidence of the prior acts.

Van Halsey, ¶ 15 (quoting State v. Shaw, 2016 ND 171, ¶ 8, 883 N.W.2d 889). Further, even when the prior bad acts evidence satisfies the N.D.R.Ev. 404(b) three-step analysis, the evidence is not “automatically admissible,” and the district court must still conduct the balancing test under N.D.R.Ev. 403 to “balance the probative value of the evidence against its prejudicial effect in determining whether to admit evidence of a defendant's prior bad acts.” Id. (internal quotations omitted) (quoting Shaw, ¶ 9). A district court's error in admitting evidence under N.D.R.Ev. 404(b) is subject to harmless review under N.D.R.Crim.P. 52. Id.

[¶36] The State argues on appeal that the district court addressed the relevant Rule 404(b) steps “indirectly.” Here, in allowing C.G.’s testimony, the district court ruled in part that the probative value was high for purposes of “intent” and “motive,” and the prejudicial value was not substantially outweighed by the unfair prejudice because it did not involve sexual contact in any sexual manner. The court adequately addressed the first step of the test required under N.D.R.Ev. 404(b) and 403 in considering the purposes, probative value, and potential prejudice of C.G's testimony. While the court properly analyzed the first step in discussing the purpose of C.G.’s testimony, and arguably the third step by denying the defendant's motions under N.D.R.Crim.P. 29, the State made no offer of proof on the reliability of C.G.’s testimony and the court provided no analysis on the second step, i.e., that C.G.’s testimony would be “substantially reliable or clear and convincing.” In addition, the State did not adequately show and the court did not specifically find that “good cause” excused the State's lack of pretrial notice as required under N.D.R.Ev. 404(b)(3).

[¶37] We conclude the district court erred in allowing C.G.’s testimony under N.D.R.Ev. 404(b) without making a finding on good cause for lack of notice and without applying the requisite three-step analysis on the record. In doing so, the court abused its discretion.

E. Harmless Error

[¶38] Under N.D.R.Ev. 103(a), “[a] party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party[.]” Further, under N.D.R.Crim.P. 52(a), “[a]ny error, defect, irregularity or variance that does not affect substantial rights must be disregarded” as harmless error. Because we conclude the district court abused its discretion in allowing C.G.’s brief testimony about alleged romantic or sexual contact without conducting the required analysis, we must determine whether this error affected Snedaker's substantial rights or was harmless error.

[¶39] The State asked C.G. on rebuttal whether Snedaker had “ever physically contact[ed] you in a manner that you perceived as romantic or sexual.” The record shows that despite the district court's ruling limiting the scope of C.G.’s testimony, the State's question impermissibly exceeded that limit. Although Snedaker did not immediately object to the State's question about alleged romantic or sexual contact, N.D.R.Ev. 103(b) provides that “[o]nce the court rules definitively on the record at trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.”

[¶40] Here, in response to C.G.’s testimony, Snedaker's counsel requested a limiting jury instruction regarding that testimony. Before the closing jury instructions and the closing argument, the district court orally gave the jury the following the instruction:

THE COURT: Please be seated. All right. Ladies and gentlemen of the jury, the last witness that you heard from was a rebuttal witness by the State. I shouldn't say the last. It was the second to the last witness that you heard was a rebuttal witness put on by the State.

This rebuttal evidence or testimony offered by the State is only used for the purposes of impeaching the credibility or testimony of the Defendant and may not be used to prove the truth of the matters, the truth of the statements, or any other matter. Okay.

Satisfied, Mr. —

MR. MOTTINGER: Yes.

[¶41] This limiting instruction narrowed the purposes for which C.G's testimony could be used: the jury could consider it only to impeach the credibility of Snedaker's testimony, not to prove any other matter. The defense's requested limiting jury instruction may have ameliorated the harm relating to the district court's rulings regarding C.G.’s testimony, because a jury is presumed to follow the trial court's instructions. State v. Simpson, 2026 ND 87, ¶ 10, 34 N.W.3d 155. However, the State appears to have relied on C.G.’s rebuttal testimony beyond this limitation, arguing not only Snedaker's credibility, but also his character for untruthfulness and his propensity for physical contact perceived to be of a sexual nature with a child. In its closing argument, the State argued:

The Defendant, who testified in a manner that was — he testified to facts that were inconsistent with the State's second to last rebuttal witness.

I would ask you to bear in mind, only for purposes of Mr. Snedaker's credibility as a witness. To very seriously think about what the second to last witness had to say in conjunction with what Mr. Snedaker said that he did and didn't do what [sic] the girls at his farm.

(Emphasis added.) In its rebuttal closing, the State further argued:

[Snedaker] is denying that he ever engaged in any kind of physical contact with those girls that could be seen as romantic or sexual. I'm talking about all the girls that I mentioned that went to his farm.

And he's denying that he ever told any girl to keep it a secret, or not to tell her parents about something that he did with her. And he was saying that the contacts that he had were always innocent, and never intimate, and never secretive.

Please square his answers to those questions against the witness [C.G.] that testified immediately after him. I submit that the testimony that directly contradicts his accounts and his answers to those statements should be playing pretty heavily in your minds, when you decide whether or not you believe Mr. Snedaker's account of how things went down.

(Emphasis added.)

[¶42] The State's closing argument raises concerns about whether the district court's incomplete analysis of C.G.’s testimony under N.D.R.Ev. 404(b) was harmless.

[¶43] In Gaddie v. State, we discussed the danger of prejudice regarding the admission of prior sexual misconduct:

This Court has warned of the prejudice created by admission of prior sexual misconduct during a criminal prosecution for a sex-related crime. See, e.g. [State v.] Blotske, 2017 ND 190, ¶ 15, 899 N.W.2d 661 (stating “the suggestion of separate allegations of criminal sexual behavior in a trial for a sex offense has a unique potential for improper prejudice to the defendant”). We have a long history of reversing convictions in this context because such evidence is “highly prejudicial in a trial for gross sexual imposition.” Id.; see also [State v.] Osier, 1997 ND 170, ¶ 1, 569 N.W.2d 441 (reversing conviction for sexual abuse of a minor when the district court admitted evidence the defendant engaged in prior incidents of sexual misconduct with a minor); State v. Forsland, 326 N.W.2d 688, 694 (N.D. 1982) (reversing conviction for sexual assault after evidence of indecent exposure conviction was admitted); State v. Flath, 61 N.D. 342, 237 N.W. 792, 794 (1931) (reversing conviction for taking indecent liberty with a child after other children were allowed to testify about similar abuse).

2024 ND 170, ¶ 20, 11 N.W.3d 21.

[¶44] While the district court's errors, standing alone, may have been harmless, the cumulative effect of these errors requires reversal. See Pickens, 2018 ND 198, ¶ 25, 916 N.W.2d 612; Blotske, 2017 ND 190, ¶ 16, 899 N.W.2d 661; State v. Parisien, 2005 ND 152, ¶ 22, 703 N.W.2d 306. On this record, we conclude that the district court abused its discretion by allowing C.G.’s rebuttal testimony about alleged romantic or sexual contact in response to the State's cross-examination of Snedaker, without conducting the required analysis, and by failing to restrain the State's questioning of C.G. to the purposes it allowed in its ruling.

[¶45] Under the facts of this case, where Snedaker did not deny he was acquainted with and had contact with the victims at his farm but denied having any intimate or sexual contact with them, the case turned on the jury's determination of the credibility of the witnesses. Therefore, we cannot conclude the cumulative errors did not affect Snedaker's substantial rights or that they were harmless error. We therefore reverse.

III

[¶46] We have considered the other arguments and conclude they are unnecessary to our decision or are without merit. We reverse the criminal judgments and remand for further proceedings.

Fair McEvers, Chief Justice.

[¶47] Lisa Fair McEvers, C.J. Jon J. Jensen Douglas A. Bahr Mark A. Friese William A. Neumann, S.J.[¶48] The Honorable William A. Neumann, S.J., sitting in place of Tufte, J., disqualified.