IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2024 ND 18

State of North Dakota, Plaintiff and Appellee

v.

Erica Good Bear, Defendant and Appellant

No. 20230193

Appeal from the District Court of Morton County, South Central Judicial 

District, the Honorable James S. Hill, Judge.

AFFIRMED.

Opinion of the Court by Jensen, Chief Justice.

Kendra M. Richard, Assistant State’s Attorney, Mandan, ND, for plaintiff and 

appellee. 

Kristen A. Clow, Grand Forks, ND, for defendant and appellant.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

FEBRUARY 8, 2024 

STATE OF NORTH DAKOTA
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State v. Good Bear

No. 20230193

Jensen, Chief Justice.

Erica Good Bear appeals from a judgment entered following a jury 

verdict finding her guilty of terrorizing, a class C felony. Good Bear asserts 

there was insufficient evidence to warrant a conviction, the district court 

abused its discretion in admitting hearsay statements of a non-appearing child 

witness through the testimony of the victim and the responding officer, and she 

was denied her right to confront a witness. We affirm.

On November 17, 2022, law enforcement was dispatched to a call 

reporting a woman and her two children had run to a neighbor’s residence 

asking for help. After responding and speaking with the involved parties, Good 

Bear was placed under arrest for terrorizing and domestic violence. At trial,

the victim, the 911 caller, and the arresting officer testified.

The victim testified Good Bear told her Good Bear wanted to kill her,

causing the victim fear. Good Bear then approached the victim from behind 

and strangled her. This attack continued until the victim’s four-year-old child 

came into the room, yelling, “Don’t kill my mom.” The victim testified she was 

able to get away and run with her children to a neighbor’s house to get help.

Good Bear objected as hearsay to the admission of the victim’s testimony 

repeating the child’s statement. The State argued the statement was not being 

offered to show the truth of the matter asserted but instead was being offered 

to show the effect on the child. The district court overruled the objection.

The arresting officer was subsequently called as a witness by the State.

The officer indicated upon arriving, she briefly spoke with the 911 caller before 

she entered the caller’s home to speak with the victim. The officer testified that 

prior to getting any information from the victim, the victim’s four-year-old child 

approached the officer and stated Erica tried to kill his mommy.
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Good Bear objected to the officer’s testimony repeating the statement of 

the child as hearsay. The State argued its admission was permitted under the 

excited utterance exception to the rule excluding hearsay from evidence. Good 

Bear rebutted, stating it was not an excited utterance because too much time 

had passed between the event described by the statement and the child making 

the statement. The district court overruled the objection, finding the statement 

was obtained during the “gathering of information in a police investigation at 

the immediate scene in response to a 911 call.”

At the conclusion of the State’s case, Good Bear moved pursuant to 

N.D.R.Crim.P. 29 for a judgment of acquittal arguing there was insufficient 

evidence to support a conviction for terrorizing. The district court denied the 

motion after making a finding there was sufficient evidence to put the charges 

before the jury. The jury returned a verdict convicting Good Bear on the charge 

of terrorizing.

Good Bear challenges the admission into evidence of the two statements 

made by the victim’s four-year-old child, the first offered through the testimony 

of the victim and the second offered through the testimony of the arresting 

officer. 

The district court exercises broad discretion in determining 

whether to admit or exclude evidence, and its determination will 

be reversed on appeal only for an abuse of discretion. A district 

court abuses its discretion in evidentiary rulings when it acts 

arbitrarily, capriciously, or unreasonably, or it misinterprets or 

misapplies the law.

State v. Vickerman, 2022 ND 184, ¶ 8, 981 N.W.2d 881 (cleaned up).

In determining if an out-of-court statement is admissible, the district 

court must first determine if the statement is hearsay under the rules of 

evidence. Hearsay is a statement, other than made by the declarant while 

testifying at the trial or hearing, offered in evidence to prove the truth of the 

matter asserted. N.D.R.Ev. 801(c)-(c)(2). “As a general rule, hearsay evidence 
3

is inadmissible.” Vickerman, 2022 ND 184, ¶ 9; N.D.R.Ev. 802. It is only after 

determining a statement is hearsay that the court must determine if it falls 

into one of the exceptions to the hearsay rule listed within Rules 803 and 804.

A

During the State’s case, the victim testified to the domestic incident 

which occurred that night. She indicated Good Bear only stopped the assault 

after the victim’s four-year-old child came into the room and said, “Don’t kill 

my mom.” The defense objected, asserting the statement was hearsay and 

should be excluded from evidence. The State responded the statement of the 

child was not being used to prove the truth of the matter but instead to show 

the effect the incident had on the child. The district court overruled the 

objection determining the statement was not hearsay, and admitted it into 

evidence. The court found the statement, “Don’t kill my mom,” was not being 

offered to prove the truth of the matter asserted because it was not being 

offered to prove Good Bear was attempting to kill the victim.

Good Bear argues although not directly stating a threat had been made, 

the child’s statement still infers that a threat of great bodily harm was directed 

toward the victim. Good Bear essentially argues we should look beyond the 

actual words of the statement, conclude the statement is evidence of a threat, 

and disregard the State’s explanation of why the statement was offered,

thereby allowing a determination the statement was offered to prove such a 

threat occurred, qualifying it as hearsay. Even if the statement, “Don’t kill my 

mom,” is being offered for the truth of the matter asserted, qualifying it as 

hearsay, the statement may still be admitted.

Hearsay is generally inadmissible as evidence pursuant to N.D.R.Ev. 802 

unless it falls within one of the exceptions outlined in N.D.R.Ev. 803 or 

N.D.R.Ev. 804. The excited utterance exception allows admission of “[a 

hearsay] statement relating to a startling event or condition, made while the 

declarant was under the stress of excitement that the event or condition

caused.” N.D.R.Ev. 803(2). This exception to the rule excluding hearsay from 

evidence is permitted regardless of the declarant’s availability to testify as a 

witness. N.D.R.Ev. 803. For a statement to be considered an excited utterance, 
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“[t]he foundational facts must show: (1) a startling event or condition; and (2) 

the statement is the product of the declarant’s stress or excitement resulting 

from the startling event or condition.” State v. Schweitzer, 2007 ND 122, ¶ 11, 

735 N.W.2d 873.

The victim’s testimony regarding her four-year-old’s statement, “Don’t 

kill my mom,” would qualify as an excited utterance. The child made the 

statement after walking in to see Good Bear strangling the victim, his mother, 

a startling event. The child then made the statement, “Don’t kill my mom,” as 

a direct result of the stress or excitement caused by witnessing this event. We 

conclude the district court did not abuse its discretion in admitting the 

statement into evidence.

B

The arresting officer testified prior to gathering any information from 

the victim, the four-year-old child came up to the officer and stated Good Bear 

had tried to kill the victim. Good Bear objected, asserting the statement was 

hearsay and not admissible as evidence. The State responded indicating the

statement was admissible under the excited utterance exception to N.D.R.Ev. 

802’s exclusion of hearsay from admission as evidence; Good Bear contended 

the statement did not fall within this exception as too much time had elapsed 

between the startling condition occurring and the child’s statement to the 

officer. The district court overruled the objection. Upon appeal, the State 

continues to assert the child’s statement is admissible under the excited 

utterance exception to the hearsay rule.

It is unclear from the record the reason the district court overruled Good 

Bear’s objection. Regardless of the basis for the court’s ruling, “we will not set 

aside a correct result merely because the district court’s reasoning is incorrect 

if the result is the same under the correct law and reasoning.” State v. 

Lafromboise, 2021 ND 80, ¶ 20, 959 N.W.2d 596 (quoting Sanders v. Gravel 

Prods., Inc., 2008 ND 161, ¶ 9, 755 N.W.2d 826). 

In determining if an out-of-court statement is admissible, the district 

court must first determine if the statement is hearsay under the rules of 
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evidence. Here, in their response to Good Bear’s objection to the admission of 

the child’s statement Erica tried to kill his mommy, through the officer, the 

State concedes that the statement is being offered to prove the truth of the 

matter asserted. However, the State argues that even though it is hearsay, its 

admission was permitted under the excited utterance exception to the rule 

excluding hearsay from evidence. As the State conceded this issue at trial, we 

will not reanalyze if the statement is hearsay upon appeal.

Hearsay is generally inadmissible as evidence pursuant to N.D.R.Ev. 802

unless it falls within one of the exceptions outlined in N.D.R.Ev. 803 or 

N.D.R.Ev. 804. The excited utterance exception is included within Rule 803.

Good Bear argues the excited utterance exception does not apply because, by 

the time the statement was made after the child had reached the neighbor’s 

house, the stress or excitement resulting from the startling event or condition 

had passed.

This issue was recently considered by the Iowa Supreme Court. State v. 

Dessinger, 958 N.W.2d 590 (Iowa 2021). The amount of time that is permissible 

to lapse between the event and the statement, to allow the statement to qualify 

under the excited utterance exception, is more likely to be on the high end of 

the range permitted when the statement is made by a child. Id. at 601-02. The 

Iowa Supreme Court inferred the basis for allowing longer periods of time 

between the event and a child’s statement is that young children will likely 

remain in an excited state longer than adults. See id.

Here, the declarant was a four-year-old child who had recently witnessed 

this altercation within the child’s home against his mother and left the home 

running to seek safety at a neighbor’s house. The responding officer arrived 

very shortly after the event had occurred. The statement was made shortly 

after the child witnessed Good Bear strangling his mother, a startling event. 

Further, the statement was made as a result of the child’s stress or excitement 

resulting from his witnessing this event. We conclude under these 

circumstances, the hearsay statement qualified as an excited utterance and 

the district court did not abuse its discretion in admitting the statement.
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Good Bear also asserts the district court erred admitting the officer’s 

testimony regarding the child’s statement as its admission violated Good 

Bear’s Sixth Amendment rights under the Confrontation Clause of the United 

States Constitution.

“[T]he Sixth Amendment prohibits the admission of testimonial hearsay 

against the accused, unless the witness is unavailable to testify and the 

accused had a prior opportunity to cross-examine the declarant. The 

Confrontation Clause does not apply to non-testimonial hearsay.” State v. 

Kalmio, 2014 ND 101, ¶ 15, 846 N.W.2d 752 (citing Crawford v. Washington, 

541 U.S. 36, 68 (2004); see also Davis v. Washington, 547 U.S. 813, 821 (2006)).

“We review an alleged violation of a constitutional right, including the right to 

confront an accuser, de novo.” State v. Bowen, 2023 ND 25, ¶ 12, 985 N.W.2d 

636.

The district court determined the child’s statement made to the officer 

was hearsay and properly admitted the statement into evidence under the 

excited utterance exception to N.D.R.Ev. 802’s exclusion of hearsay from 

evidence. However, even when a hearsay statement falls within an exception 

to the rule, it may not be admitted if the statement is testimonial in violation 

of the Sixth Amendment. Here, the court determined the statement was not 

testimonial because it was gathered during a police investigation at the 

immediate scene in response to a 911 call.

“Statements are testimonial when they are (1) a product of formal 

interview, (2) obtained with government involvement, and (3) have a law 

enforcement purpose.” Vickerman, 2022 ND 184, ¶ 17. This Court has further 

indicated statements are nontestimonial when the primary purpose is to 

“enable police assistance to meet an ongoing emergency,” and are considered 

testimonial when the “circumstances objectively indicate that there is no such 

ongoing emergency, and that the primary purpose of the interrogation is to 

establish or prove past events potentially relevant to later criminal 

prosecution.” State v. Froelich, 2017 ND 154, ¶ 9, 897 N.W.2d 905 (quoting

Davis, 547 U.S. at 822).
7

The officer testified she had responded to a report of a woman and her 

two children, who were not dressed for the weather, and had frantically run to 

a neighbor’s house asking for help. Upon arrival, the officer spoke with the 911 

caller, the neighbor, outside the house and entered his residence. She indicated 

that before being able to talk with the victim, the child came up to her and

made the statement at issue.

Although the officer is a government official, this statement was not 

obtained through a formal interview or police interrogation; the statement was 

obtained through no action of the officer and was the result of a child’s excited 

utterance. There is no indication the officer was objectively gathering this 

statement to establish or prove past events relevant to criminal prosecution.

We conclude the statement made by the child was not testimonial under 

the Sixth Amendment.

Good Bear also argues there was insufficient evidence to support the 

jury’s verdict on the charge of terrorizing. After reviewing the record, we 

conclude sufficient evidence supports the verdict. We summarily affirm under 

N.D.R.App.P. 35.1(a)(3), concluding the verdict is supported by substantial 

evidence.

We conclude the State produced sufficient evidence to support the jury’s 

verdict of guilty to the charge of terrorizing, a class C felony. The district court 

did not abuse its discretion in the admission of the child statement through the 

testimony of the victim or the responding officer because in both instances the 

statements met the requirements of the excited utterance exception to the rule 

excluding hearsay from evidence. The hearsay statement offered through the 

testimony of the responding officer also did not violate Good Bear’s 

constitutional right to confrontation because the statement was not 

testimonial. We affirm.
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Jon J. Jensen, C.J.

Daniel J. Crothers

Lisa Fair McEvers

Jerod E. Tufte

Douglas A. Bahr