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Date: 01-12-2021

Case Style:

State of North Dakota v. John Immanuel Hirschkorn

Case Number: 2020 ND 268

Judge: Jerod E. Tufte


Plaintiff's Attorney: Ladd R. Erickson, State’s Attorney

Defendant's Attorney:

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Bismarck, ND - Criminal defense attorney represented John Hirschkorn with appealing from a criminal judgment entered after a jury found him guilty of aggravated assault and driving under the influence of alcohol.

The charges in this case arise out of an altercation in a McLean County
bar that was captured on video. On October 10, 2018, Hirschkorn was involved
in a bar fight with another individual, resulting in Hirschkorn striking that
individual in the face with a beer bottle and causing a serious cut to the
individual’s face. Hirschkorn also sustained several injuries, including a blow
to his head. After the fight concluded, Hirschkorn left the bar and drove away
from the scene. Law enforcement officers arrived at the bar, and the individual
was taken to the hospital. Officers subsequently located Hirschkorn driving his
vehicle. He was stopped and ultimately arrested for driving under the
influence. Because Hirschkorn was taken to the hospital to be medically
cleared before testing, it was more than two hours after he had last driven that
an Intoxilyzer test established his blood alcohol concentration to be 0.139
percent, over the legal limit.
[¶3] The State charged Hirschkorn with aggravated assault and driving
while under the influence of alcohol. In June 2019, the district court held a
two-day jury trial. Before jury selection, Hirschkorn made a motion in limine
requesting the court to exclude a video from the bar showing at least a portion
of the fight. The court subsequently received the video into evidence at trial
over his objection. The court also allowed limited testimony at trial from Dr.
Rodney Swenson, a neuropsychologist called as an expert witness by
Hirschkorn to discuss symptoms of traumatic brain injury, to show Hirschkorn
had sustained a brain injury caused by the other individual in the altercation,
and to support the reasonableness of his claim of self-defense.
[¶4] After the State rested, and at the close of all evidence, Hirschkorn moved
for a judgment of acquittal on both charges. The court denied his motion,
finding sufficient evidence existed for the case to go to the jury. The jury found
him guilty on both counts. The court held a sentencing hearing in November
2019, and a criminal judgment was entered.
[¶5] Hirschkorn argues the district court erred in admitting and excluding
certain evidence during trial. He specifically claims the court should have
excluded the exhibit including bar videos and the court should not have limited
the neuropsychologist’s expert testimony.
[¶6] We review the district court’s evidentiary rulings for an abuse of
discretion. State v. Poulor, 2019 ND 215, ¶ 14, 932 N.W.2d 534. A court’s
decision to exclude evidence on the basis that it lacks adequate foundation lies
within its sound discretion and will not be reversed on appeal absent an abuse
of discretion that affected substantial rights. See, e.g., Swiontek v. Ryder Truck
Rental, Inc., 432 N.W.2d 893, 896 (N.D. 1988). A court abuses its discretion
when it acts arbitrarily, capriciously, or unreasonably or if it misinterprets or
misapplies the law. Poulor, at ¶ 14.
[¶7] If the district court erred in admitting evidence, this Court must then
decide whether the evidence was so prejudicial that “a defendant’s substantial
rights were affected and a different decision would have resulted without the
error.” City of Fargo v. Erickson, 1999 ND 145, ¶ 13, 598 N.W.2d 787. Under
N.D.R.Crim.P. 52(a), an erroneous evidentiary ruling will be disregarded as
harmless error when it does not affect the defendant’s substantial rights.
Erickson, at ¶ 13. This Court further said:
The note to N.D.R.Crim.P. 52 explains: “To determine whether
error affecting substantial rights of the defendant has been
committed, the entire record must be considered and the probable
effect of the error determined in the light of all the evidence.” See
also 28 James W. Moore et al, Moore’s Federal Practice Federal
Rules of Criminal Procedure § 652.03[1] (2d ed. 1999) (An error
should not be considered in isolation when deciding whether it has
affected a defendant’s substantial rights, but should be considered
in the context of the entire record.); 1 Jack B. Weinstein &
Margaret A. Berger, Weinstein’s Federal Evidence § 103.41[5][a]
(2d ed. 1999) (Appellate courts frequently conclude an error is
prejudicial if the “erroneously admitted evidence is the only or
primary evidence in support of or in opposition to a claim or
Erickson, at ¶ 13.
[¶8] Hirschkorn argues the district court abused its discretion by admitting
the State’s Exhibit 3, including bar videos of the incident, which should have
been excluded. He contends the evidence lacked proper authentication and
foundation and was unfairly prejudicial.
[¶9] To authenticate evidence under N.D.R.Ev. 901(a), the proponent must
produce evidence sufficient to support a finding that the item is what the
proponent claims it is. Rule 901(b)(1) and (4), N.D.R.Ev., provides examples of
authentication including testimony of a witness with knowledge “that an item
is what it is claimed to be,” and “appearance, contents, substance, internal
patterns, or other distinctive characteristics of the item, taken together with
all the circumstances.” See also State v. Thompson, 2010 ND 10, ¶¶ 21-22, 777
N.W.2d 617. “[T]he proponent of offered evidence need not rule out all
possibilities inconsistent with authenticity or conclusively prove that evidence
is what it purports to be; rather, the proponent must provide proof sufficient
for a reasonable juror to find the evidence is what it purports to be.” Thompson,
at ¶ 21 (citations omitted).
[¶10] For example, “a properly authenticated video tape recording of the scene
of the crime constitutes competent evidence and is admissible over the
defendant’s objections that the tape is inflammatory, prejudicial, or
cumulative.” 29A Am. Jur. 2d Evidence § 976 (footnotes omitted).
Videotapes are admissible as evidence only when a proper
foundation has been established. Motion picture films and
videotapes may be authenticated by testimony that the film or tape
accurately depicts the events shown in it. The party who offers a
videotape in evidence must show that it is an accurate, faithful
representation of the place, person, or subject it purports to
This foundation must be laid by someone having personal
knowledge of the filmed subject that the film is an accurate
portrayal of what it purports to show. Thus, the testimony of a
person who was present at the time a film was made that it
accurately depicts what it purports to show is a legally sufficient
foundation for its admission in evidence. While testimony from a
videographer that he took the video, that it correctly reflects what
he saw, and that it has not been altered or edited is normally
sufficient to authenticate a videotape, there is no requirement that
the videotape be authenticated by a photographer so long as the
person authenticating the videotape is familiar with the scene
depicted. Whether a videotape is a fair and accurate
representation of the scene sought to be depicted addresses itself
to the discretion of the trial judge which will not be controlled
unless abused.
Id. § 977 (footnotes omitted).
[¶11] Hirschkorn contends the second video included within State’s Exhibit 3
should have been excluded because of lack of authentication and foundation.
He asserts he objected to the admission because the bar owner did not provide
all of the videos to law enforcement. He asserts the bar owner testified that he
provided video of the incident near the bathroom but that his bar manager had
provided the video with the depiction of the beer bottle. Because the bar owner
did not have “independent knowledge” of the video his manager provided to the
officer, Hirschkorn argues there was not proper authentication and foundation.
[¶12] Hirschkorn further argues the video should have been excluded because
it was unfairly prejudicial under N.D.R.Ev. 403. He asserts there are thirtyfour seconds missing from the videos according to the time stamps. He
contends the State’s failure to preserve potentially useful evidence can be a
violation of due process if done in bad faith. See State v. Steffes, 500 N.W.2d
608, 612 (N.D. 1993) (summarizing three categories of cases in which courts
“have attempted to analyze an accused’s right to due process when prosecutors
fail[ed] to provide evidence to the defense which [was] within, or potentially
within, their purview”). He asserts it is unclear here whether the State
collected the full video and then intentionally destroyed or suppressed the
missing thirty-four seconds. He argues that the bar video evidence was
cumulative because there were multiple witnesses who testified he hit the
victim in the face with a bottle and caused a cut and that admitting the video
resulted in his being denied his substantial right to due process.
[¶13] The State responds, however, that the bar owner made copies of his bar
video for law enforcement and specifically identified those videos at trial and
that the owner attested the videos were fair and accurate depictions of what
had occurred in the bar on October 10, 2018, because the videos had not been
changed, altered, or manipulated. The State maintains the court considered
the alleged “gap” in the videos but admitted them anyway. The State asserts
it laid proper foundation and authenticated the bar videos and it was for the
jury to decide any question regarding video footage related to the crime
[¶14] On our review of the record, we conclude the State provided sufficient
foundational evidence to establish that the videos are a fair and accurate
representation of what they purport to be and that the alleged 34-second gap
was not prejudicial nor did it change the result of the trial. The bar owner
testified as to the foundation for the videos. Various witnesses testified at trial
about what the video purports to show, including the other individual involved
in the altercation. Hirschkorn himself testified at trial and provided his own
explanation of what was depicted on the video. He specifically testified that his
life was threatened by the other individual and that he acted in self-defense
when he hit the individual with the bottle.
[¶15] The district court did not act arbitrarily, capriciously, or unreasonably
in deciding to admit the exhibit, and in the context of the other evidence
presented, the videos were not unfairly prejudicial. We therefore conclude the
district court did not abuse its discretion in admitting the State’s Exhibit 3
containing the bar videos.
[¶16] Hirschkorn argues the district court abused its discretion by limiting
testimony at trial of Dr. Rodney Swenson.
[¶17] The district court has broad discretion in deciding whether to allow
expert testimony, and its decision will not be reversed on appeal absent an
abuse of discretion. Klein v. Estate of Luithle, 2019 ND 185, ¶ 3, 930 N.W.2d
630; see also N.D.R.Ev. 702, 703. The probative effect and admissibility of
evidence is a matter for the court’s discretion, and the court may exclude
relevant evidence when its probative value is substantially outweighed by
danger of unfair prejudice or other evidentiary considerations. Id.; see
N.D.R.Ev. 402, 403. “It is the district court’s responsibility to make certain
expert testimony is reliable as well as relevant.” Klein, at ¶ 3 (quoting Myer v.
Rygg, 2001 ND 123, ¶ 10, 630 N.W.2d 62).
[¶18] Hirschkorn contends the district court’s “exclusion” of the doctor’s
testimony was due to his lack of disclosing the doctor’s qualifications and
opinions. He argues this was an error of law because he was not required to
do so and the State did not serve a reciprocal discovery request. See
N.D.R.Crim.P. 16(b)(1)(C). He further contends the court erroneously limited
the doctor’s testimony on the basis of a misinterpretation and misapplication
of N.D.R.Crim.P. 12.2(b), because Hirschkorn was not claiming he had a
mental defect and lacked capacity to form the requisite intent. While he did
not dispute at trial that he knowingly caused bodily injury to the other
individual, he asserts he did the act in self-defense because he reasonably
feared for his safety.
[¶19] Hirschkorn asserts Dr. Swenson’s testimony would have been presented
to clarify that he had suffered a traumatic brain injury, that symptoms the
State argued were due to his being under the influence of alcohol were
consistent with such an injury, and that his actions taken in self-defense were
reasonable. He contends the court’s limiting Dr. Swenson’s testimony greatly
prejudiced him and affected his substantial right to due process. He argues
that because the court prohibited Dr. Swenson from testifying about the
“numerous” medical records he reviewed in reaching his opinion, the State was
able to mislead the jury by arguing that he was feigning his injury.
[¶20] The State responds that the district court properly limited the testimony
of an undisclosed expert. The State contends it did not contest that Hirschkorn
had sustained injuries, but rather that his injuries had nothing to do with his
striking the other individual’s face with a beer bottle after mutual combat was
over and the individual was seated at the bar. The State asserts Hirschkorn’s
actions were clearly excessive under the circumstances. The State objected to
the doctor’s testimony as irrelevant since he was not a fact witness. The State
asserts the expert’s testimony was not helpful to the trier of fact, the doctor
admitted he did not even know what the purpose of his testimony was, and the
court did not err in limiting the testimony to the doctor’s background and
personal interactions with the defendant.
[¶21] Here, Dr. Swenson was permitted to testify at trial regarding the typical
symptoms exhibited with a traumatic brain injury, including symptoms
related to him by Hirschkorn such as headaches, dizziness, nausea, and
memory loss. Dr. Swenson testified that he had reviewed the bar video of the
altercation, reviewed the photographs of Hirschkorn’s injuries, and had talked
to Hirschhorn. Dr. Swenson was also permitted to testify that he believed to a
reasonable degree of medical certainty that Hirschhorn had a traumatic brain
injury and that Hirschkorn’s injuries were caused by the other individual
during the altercation at the bar.
[¶22] While the district court did not permit Dr. Swenson to testify about
Hirschhorn’s medical records, the court had also considered that Dr. Swenson
was not Hirschkorn’s treating physician and had not examined him. Moreover,
the State did not dispute that Hirschkorn was injured in the altercation. On
this record, we conclude the district court did not abuse its discretion by
limiting Dr. Swenson’s testimony.
[¶23] Hirschkorn argues insufficient evidence supports the jury’s guilty
verdicts for aggravated assault and driving under the influence. Our standard
of review is well established:
A defendant challenging the sufficiency of the evidence on appeal
“must show that the evidence, when viewed in the light most
favorable to the verdict, reveals no reasonable inference of guilt.”
State v. Jacobson, 419 N.W.2d 899, 901 (N.D. 1988). This Court’s
role is “to merely review the record to determine if there is
competent evidence that allowed the jury to draw an inference
‘reasonably tending to prove guilt and fairly warranting a
conviction.’” Id. (quoting State v. Matuska, 379 N.W.2d 273, 275
(N.D. 1985)). The Court does not weigh conflicting evidence or
judge the credibility of witnesses. State v. Brandner, 551 N.W.2d
284, 286 (N.D. 1996).
State v. Michel, 2020 ND 101, ¶ 12, 942 N.W.2d 472 (quoting State v.
Mohammed, 2020 ND 52, ¶ 5, 939 N.W.2d 498); see also State v. Friesz, 2017
ND 177, ¶ 34, 898 N.W.2d 688. “A conviction rests upon insufficient evidence
only when no rational factfinder could have found the defendant guilty beyond
a reasonable doubt after viewing the evidence in a light most favorable to the
prosecution and giving the prosecution the benefit of all inferences reasonably
to be drawn in its favor.” State v. Baltrusch, 2019 ND 259, ¶ 5, 934 N.W.2d 886
(quoting State v. Lyons, 2019 ND 175, ¶ 9, 930 N.W.2d 156).
[¶24] Under N.D.C.C. § 12.1-17-02(1)(b) and (c), to convict for aggravated
assault, the State was required to prove beyond a reasonable doubt that
b. Knowingly cause[d] bodily injury or substantial bodily injury to
another human being with a dangerous weapon or other
weapon, the possession of which under the circumstances
indicates an intent or readiness to inflict serious bodily injury;
c. Cause[d] bodily injury or substantial bodily injury to another
human being while attempting to inflict serious bodily injury
on any human being[.]
The State was required to prove each element of the offense beyond a
reasonable doubt, including that Hirschhorn was not acting in self-defense and
that his conduct was not excused because he believed his conduct was
necessary and appropriate. See N.D.C.C. § 12.1-01-03(1); N.D.C.C. § 12.1-05-
08. Section 12.1-05-03, N.D.C.C., provides for when force is justified in selfdefense:
A person is justified in using force upon another person to
defend himself against danger of imminent unlawful bodily injury,
sexual assault, or detention by such other person, except that:
1. A person is not justified in using force for the purpose of
resisting arrest, execution of process, or other
performance of duty by a public servant under color of
law, but excessive force may be resisted.
2. A person is not justified in using force if:
a. He intentionally provokes unlawful action by
another person to cause bodily injury or death to
such other person; or
b. He has entered into a mutual combat with another
person or is the initial aggressor unless he is
resisting force which is clearly excessive in the
circumstances. A person’s use of defensive force after
he withdraws from an encounter and indicates to the
other person that he has done so is justified if the
latter nevertheless continues or menaces unlawful
[¶25] Hirschkorn argues there was insufficient evidence to establish that he
possessed the beer bottle with an intent or readiness to inflict serious bodily
injury, that he was attempting to inflict serious bodily injury, or that his
actions were not done in self-defense. He relies on his testimony that the beer
bottle was not his and that he grabbed the bottle just as a reaction in hopes he
could leave. He contends there was no attempt, intent, or readiness to inflict
serious bodily injury and there was no evidence presented of a serious bodily
injury. Hirschkorn asserts that he attempted to end the fight and leave
multiple times but the other individual kept pursuing him. Moreover, he
asserts the individual, as a co-combatant, testified he did not remember much
or had no memory of the period leading up to getting hit with the bottle or of
leaning into Hirschkorn as if threatening him.
[¶26] The State responds that this Court should reject Hirschkorn’s argument
because it mainly relies on his own version of the events. The State asserts the
jury heard all the evidence at trial and rejected his version.
[¶27] In addition to the videos of the altercation at the bar, there was
testimony at trial from various witnesses, including the other individual
involved in the altercation and from Hirschkorn himself. The jury was
permitted to draw its own inferences regarding Hirschkorn’s intent in using
the beer bottle as a weapon and whether striking the other individual’s face
with it was reasonable self-defense based on Hirschkorn’s injuries sustained
in the bar fight. On this record, we conclude that sufficient evidence supports
the jury’s verdict finding him guilty of aggravated assault.
[¶28] Hirschkorn argues that insufficient evidence supports a guilty verdict
for driving under the influence of alcohol. He contends that the evidence
showed he had a couple of beers and a shot over an eight-hour period, and that
the amount of alcohol testified to would not cause a person to be under the
influence. He contends the deputy’s initial stop and tests did not provide
sufficient evidence he was under the influence. Hirschkorn asserts the deputy
did not observe any clues in his traffic stop that indicated Hirschkorn was
under the influence, and he further asserts a traumatic brain injury the other
individual inflicted on him in the fight caused severe dizziness and staggering.
Hirschkorn also contends the Intoxilyzer test was “invalid” due to the approved
method not being followed. See State v. Stroh, 2011 ND 139, ¶ 9, 800 N.W.2d
276. He argues the deputy did not follow the approved method because he did
not establish a twenty-minute waiting period during which he could have
ascertained whether Hirschkorn had placed anything in his mouth. He points
to the deputy’s testimony that during the waiting period, there were four
minutes when the deputy left the room and another point when Hirschkorn
went to the restroom. He asserts this is also shown on the deputy’s body cam
footage. Hirschkorn contends, therefore, there was insufficient evidence to
support a guilty verdict for driving under the influence. The State again asserts
the jury heard all the evidence at trial and rejected his version, including the
purported brain injury causing dizziness and staggering.
[¶29] At oral argument, Hirschkorn’s counsel conceded that he waived the
“scrupulous compliance” argument with regard to the Intoxilyzer test and that
the issue on appeal was regarding the weight of the evidence supporting the
driving under the influence conviction. Moreover, Hirschkorn did not object to
admission of the exhibit containing the Intoxilyzer test results at trial.
Regarding the chemical test, the jury was specifically instructed that the
accuracy and reliability of the test was a question of fact solely for the jury’s
determination and that the jury must disregard the test if the jury had
reasonable doubt as to the accuracy or reliability of the chemical test or result.
[¶30] Here, the officer testified at trial that he witnessed Hirschkorn’s vehicle
swerving down the road. There is evidence that Hirschkorn stumbled out of his
vehicle, smelled of alcohol, had slurred speech, and had a blood alcohol content
of 0.139 percent. There was also testimony that Hirschkorn drank at multiple
restaurants and bars before arriving at the bar at which the altercation took
place. While he asserted at trial that he was not drunk, the jury was free to
draw its own conclusion.
[¶31] On the basis of our review of the record, we conclude sufficient evidence
supports the jury’s verdict finding Hirschkorn guilty of driving under the
influence of alcohol.

Outcome: The judgment is affirmed.

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