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City of Fargo v. Erickson7/29/1999
, 322 N.W.2d 826, 837 (N.D. 1982). 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 (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 (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 defense").
[ ] Erickson asserts he was prejudiced because of the erroneous admission of irrelevant evidence. However, erroneous introduction of irrelevant evidence does not necessarily mean its admission was prejudicial. State v. Drader, 374 N.W.2d 601, 602 (N.D. 1985). The irrelevant evidence heard by the jury in this case was simply that the consent implied by N.D.C.C. § 39-20-14 was, in fact, given by Erickson. Standing alone, this erroneous admission was not prejudicial.
[ ] Erickson contends, however, the jury's question whether a breathalyzer test was admitted and if so, what the results of that test were, evidenced the jury was focused on irrelevant evidence and, therefore, it necessarily was so prejudicial that its admission requires automatic reversal. On the record provided, prejudice to Erickson's substantial rights cannot be shown. Although Erickson ordered the transcript of the motion hearing of September 8, 1998, and the transcript of the direct testimony of the arresting officer, he failed to provide this court with a full transcript of the trial proceedings. There is no record on appeal of the trial court's response, if any, to the questions of the jury. Without such a record, the jury questions alone are insufficient to establish the error was prejudicial. We will not engage in inappropriate speculation about the trial court's response.
[ ] An appellant has a duty to provide this court with a transcript sufficient to allow for an intelligent and meaningful review of an alleged error. See Sabot v. Fargo Women's Health Organization, Inc., 500 N.W.2d 889, 891 (N.D. 1993) (citation omitted). Under N.D.R.App.P. 10(b) " f an appeal is taken in a case in which an evidentiary hearing was held, it is the duty of the appellant to order a transcript of the proceedings." An appellant "assumes the consequences and the risk for the failure to file a complete transcript." Sabot, at 892 (citation omitted); City of Fargo v. Bommersbach, 511 N.W.2d 563, 566 (N.D. 1994). Without the ability to consider the error in the context of the entire transcript, we must make our analysis under N.D.R.Crim.P. 52(a) in the context of the record provided. Reviewing that record, the judgment of conviction must be affirmed because we are unable to determine it is likely the erroneous admission of irrelevant evidence that Erickson consented to take an A.L.E.R.T. test changed the final result. The error asserted here is not one of constitutional dimension. "A non-constitutional error is harmless unless it had a substantial influence on the jury's verdict in the context of the entire case, or leaves one in grave doubt whether it had such an effect." United States v. Moore, 129 F.3d 989, 991 (8th Cir. 1997) (citation omitted).
[ ] Erickson assumed the risk and the consequences of providing a partial transcript on appeal. The evidence in the p
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