IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2023 ND 9

State of North Dakota, Plaintiff and Appellee

v.

Steven Charles Rademacher, Defendant and Appellant

Nos. 20220126, 20220127 & 

20220128

Appeal from the District Court of Williams County, Northwest Judicial 

District, the Honorable Paul W. Jacobson, Judge.

AFFIRMED.

Opinion of the Court by Crothers, Justice.

Nathan K. Madden, Assistant State’s Attorney, Williston, ND, for plaintiff and 

appellee; submitted on brief. 

Scott O. Diamond, Fargo, ND, for defendant and appellant; submitted on brief.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

JANUARY 20, 2023 

STATE OF NORTH DAKOTA
1

State v. Rademacher 

Nos. 20220126, 20220127 & 20220128

Crothers, Justice.

[¶1] Steven Rademacher appeals from criminal judgments after a jury found 

him guilty of murder, attempted murder and terrorizing. Rademacher argues 

the district court erred in conducting a portion of the jury trial outside of his 

presence. He also argues this Court should amend N.D.R.Crim.P. 43 because 

it is internally contradictory. We affirm.

I

[¶2] On July 29, 2019, a vehicle driven by Rademacher struck three people. 

Rademacher was charged with one count of murder, two counts of attempted 

murder, and three counts of terrorizing. At trial Rademacher conceded that the 

incident occurred, and that three individuals were struck by his vehicle. The 

issue for the jury was whether Rademacher had the requisite intent for the 

charged crimes. Rademacher claims the district court violated his right to be 

present during trial on two occasions—prior to jury deliberations and after the

jury started deliberations. On December 3, 2021, the jury found Rademacher 

guilty of murder, attempted murder and terrorizing. Rademacher timely 

appealed.

II

[¶3] Rademacher argues the district court improperly removed him from the 

courtroom prior to jury deliberations and he was not present for jury 

instructions and closing arguments. 

[¶4] A defendant has a right to be present in the courtroom at every stage of 

trial. N.D.R.Crim.P. 43(a)(1)(B). We have explained the scope of North Dakota’s 

Rule requiring a defendant’s presence at trial, and the constitutional 

underpinning of the presence requirement:

“The presence requirement has its roots in the Confrontation 

Clause of the Sixth Amendment. Illinois v. Allen, 397 U.S. 337, 

338, 90 S.Ct. 1057, 1058, 25 L.Ed.2d 353, reh’g denied, 398 U.S. 
2

915, 90 S.Ct. 1684, 26 L.Ed.2d 80 (1970). The Sixth Amendment 

provides that: ‘In all criminal prosecutions, the accused shall enjoy 

the right . . . to be confronted with the witnesses against him. . . .’

U.S. Const. amend. VI. This constitutional guarantee was made 

obligatory on the states through the Fourteenth Amendment. 

Allen, 397 U.S. at 338, 90 S.Ct. at 1058 (citing Pointer v. Texas, 380 

U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965)). We have a similar 

guarantee in our State Constitution: ‘In criminal prosecutions in 

any court whatever, the party accused shall have the right . . . to 

appear and defend in person. . . .’ N.D. Const. art. I, § 12.

“North Dakota has long recognized the constitutional right 

of a defendant to be personally present during the whole of a trial. 

State v. Schasker, 60 N.D. 462, 235 N.W. 345 (N.D. 1931) (calling 

in jury after retirement and allowing court stenographer to read 

evidence from notes in absence of defendant in a felony prosecution 

was a plain violation of defendant’s constitutional rights under the 

North Dakota Constitution Article I, section 12 (previously, N.D. 

Const. Art. I, § 13)). The right is not absolute, and may be 

affirmatively waived by the defendant. See, e.g., Rule 43(c)(2), 

N.D.R.Crim.P. (permitting absence with the written consent of the 

defendant for pleas of guilty for misdemeanor offenses). Cf. State 

v. Ash, 526 N.W.2d 473, 481 (N.D. 1995) (concluding trial court 

erred in responding to jury communications without the defendant 

being present, but the error was harmless considering, in part, 

defense counsel’s repeated waiver of defendant’s right of presence). 

The right, too, may be lost by a defendant’s unruly and disruptive 

behavior. Allen, 397 U.S. 337, 90 S.Ct. 1057.

“When the constitutional right of presence is violated, it is 

subject to the harmless error standard for constitutional errors—

‘harmless beyond a reasonable doubt.’ Chapman v. California, 386 

U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, reh’g denied, 386 

U.S. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241 (1967) (holding a reviewing 

court must declare error harmless beyond a reasonable doubt 

before a federal constitutional error can be held harmless). See also

Ash, 526 N.W.2d at 481; State v. Hatch, 346 N.W.2d 268, 278 (N.D.

1984) (stating error is harmless ‘where it can be determined 

beyond a reasonable doubt that the substantial rights of the 

defendant are not affected. . . .’).
3

“In addition to the constitutional guarantee, Rule 43(a) of 

the North Dakota Rules of Criminal Procedure requires the 

presence of the defendant ‘at every stage of the trial including the 

impaneling of the jury. . . .’ Our North Dakota Rule is fashioned 

after the similarly-worded Federal Rule 43. Compare F.R.Crim.P. 

43, with N.D.R.Crim.P. 43. The presence requirement embodied in 

Federal Rule 43 has been interpreted as being broader than the 

constitutional right. United States v. Alessandrello, 637 F.2d 131, 

138 (3d Cir. 1980), cert. denied, 451 U.S. 949, 101 S.Ct. 2031, 68 

L.Ed.2d 334 (1981) (reasoning Federal Rule 43 is broader than the 

constitutional right because it ‘embodies the right to be present 

derived from the Sixth Amendment Confrontation Clause, the Due 

Process Clause of the Fifth and Fourteenth Amendments, and the 

common law privilege of presence’). Despite the purported breadth 

of Rule 43, it, too, is subject to express limitation. See, e.g.,

F.R.Crim.P. 43(b), (c); N.D.R.Crim.P. 43(b), (c) (noting certain 

instances where the defendant’s presence is not required).

“Although Rule 43 is contained in our procedural rules, our 

past decisions view its violation in light of the constitutional 

requirements. See, e.g., Ash, 526 N.W.2d at 481 (concluding error 

of communicating with jury outside of defendant’s presence was 

harmless beyond a reasonable doubt); State v. Smuda, 419 N.W.2d 

166, 168 (N.D. 1988) (noting presence requirement of Rule 43, 

N.D.R.Crim.P., but concluding defendant’s right was violated 

under the North Dakota Constitution and violation was harmless 

beyond a reasonable doubt); Hatch, 346 N.W.2d at 278 (noting 

recent adoption of Rule 43, N.D.R.Crim.P., and concluding trial 

court violated Rule 43 by communicating with jury outside 

presence of defendant and counsel but violation was disregarded 

under constitutional standard for harmless error).”

City of Mandan v. Baer, 1998 ND 101, ¶¶ 8-12, 578 N.W.2d 599.

[¶5] Here, the first question is whether Rademacher was absent during 

“trial.” The parties did not cite to a case, and we have not found one, where

North Dakota generally defines which proceedings constitute “trial” under 

N.D.R.Crim.P. 43. However, we have decided cases identifying particular court 

proceedings that are part of trial requiring the defendant’s presence. See, e.g.,

Smuda, 419 N.W.2d 166 (N.D. 1988) (communications between the court and 
4

jury); Hatch, 346 N.W.2d 268 (N.D. 1984) (communications between the court 

and jury); Baer, 1998 ND 101 (jury selection); State v. Curtis, 2009 ND 34, 763 

N.W.2d 443 (return of verdict); Hill v. State, 2000 ND 143, 615 N.W.2d 135 

(testimony being read to the jury).

[¶6] We also take guidance from another context where we have held a 

defendant’s public trial right is not violated when the defendant or the public 

is not present during “discussions about routine administrative” matters that 

do not involve resolution of disputed facts, “but instead involve logistical, 

procedural and housekeeping matters” as well as rulings on evidence and 

objections. State v. Pendleton, 2022 ND 149, ¶¶ 8, 13, 978 N.W.2d 641.

[¶7] We take further guidance from another jurisdiction describing the 

proceedings constituting “trial” under their statutes requiring that a defendant 

be present:

“‘The defendant in a felony case shall be present . . . at every stage 

of the trial including the impaneling of the jury and the return of 

the verdict . . . except as otherwise provided by law.’ (Emphasis 

added.) Harrison claims the note-passing moment in the jury room 

was a ‘stage of the trial’ requiring his presence.

“In State v. Killings, 301 Kan. 214, 241, 340 P.3d 1186 (2015), 

the court explained what constitutes a ‘stage of trial’triggering the 

statutory directive for defendant’s presence. The court said:

‘A felony defendant must be present at any stage of the 

trial when the jury is in the courtroom or when the 

defendant’s presence is essential to a fair and just 

determination of a substantial issue. The statutory 

command . . . is analytically and functionally identical 

to the requirements under the Confrontation Clause 

and the Due Process Clause of the federal Constitution 

that a criminal defendant be present at any critical 

stage of the proceedings against him or her.’

(Emphasis added.)

See also State v. McDaniel, 306 Kan. 595, 601, 395 P.3d 429 (2017) 

(stating the right to be present under K.S.A. 2019 Supp. 22-3405(a)
5

‘extends to “any stage of the criminal proceeding that is critical to 

its outcome if the defendant’s presence would contribute to the 

fairness of the procedure.”’ (Emphasis added.)”

State v. Harrison, 467 P.3d 477, 481 (Kan. 2020).

[¶8] Rademacher contends he was not present during closing arguments or 

final jury instruction. He acknowledges he has the burden of showing a 

violation of his rights occurred. See L.C. v. R.P., 1997 ND 96, ¶ 18, 563 N.W.2d 

799 (“On appeal, the appellant bears the burden of showing error.”). 

Rademacher claims, and we agree, closing arguments and instructing the jury 

are stages of the criminal proceeding critical to its outcome so that his presence 

was required.

[¶9] Rademacher did not object to any alleged removal during the trial nor 

did his attorney object to conducting any proceedings in his client’s absence. 

“When a defendant fails to object to a district court’s procedure, we review that 

procedure for obvious error under N.D.R.Crim.P. 52(b).” State v. Kruckenberg, 

2008 ND 212, ¶ 13, 758 N.W.2d 427. To establish obvious error, the defendant 

must demonstrate: (1) an error, (2) that was plain, and (3) affected his 

substantial rights. Id. at ¶ 15.

[¶10] Rademacher’s sole support for the argument he was absent from the 

courtroom is a statement by the judge made after closing arguments and final 

jury instructions that “[t]he defendant has been taken back to the jail.” 

Rademacher argues the judge’s statement is in the past tense, meaning he was 

absent when the statement was made. Rademacher argues because it is 

unclear exactly when he was removed from the courtroom, we must conclude

he was not in the courtroom before the jury was excused to deliberate. 

[¶11] The trial transcript does not indicate precisely when Rademacher was 

removed from the courtroom. However, the record shows he was present when 

court reconvened for final jury instructions and closing arguments on the last

day of trial. The attorneys made closing arguments immediately after the judge 

read the initial final instructions. The district court did not recess between 

instructions and arguments. The State gave its closing first, followed by the 
6

defendant. No recess was taken between the State’s and the defendant’s 

closing. Rademacher’s attorney made closing argument from the counsel table, 

where he said, “The issue for you folks to consider is whether or not this man 

right here intended to kill Dustin[sic] Bastian.” Later during rebuttal closing 

the State addressed the defense’s use of the passive-voice during closing. The 

State argued, “Now, ladies and gentlemen there is a trick of the English 

language called passive voice. You notice, ‘Mr. Bastian got killed.’” “Mr. Bastian 

was killed by that man right over there.” The State’s reference to “that man 

right over there” was directed at Rademacher.

[¶12] Immediately after closing arguments, the transcript shows the district 

court provided the jury with concluding final instructions. Again, the court 

proceeded from arguments to the final instructions without a recess. The jury 

was released to deliberate immediately after receiving the concluding 

instructions, and the court and counsel remained in the courtroom to gather 

exhibits admitted during trial. The following discussion occurred:

“The Court: All right. Be seated. And the jury has been taken back 

to the jury room, I’ll ask the attorneys to get together, make sure 

all of the exhibits that have been received are accumulated to be 

brought into the jury room. And as far as the recordings and CDs 

and the thumb drives, there’ll be no need to take those back there. 

If they wish to have anything played, it’ll be played in court.

The Court: So anything else, Attorney Madden?

Mr. Madden: No, Your Honor. Thank you.

The Court: Attorney Mottinger?

Mr. Mottinger: No, sir.

The Court: Okay. You want to take care of putting together the 

exhibits then, or making sure that they’re together so they can be 

taken in. Okay.

(COUNSEL CONFER)
7

The Court: I’ll be asking on the record after it’s all accumulated if 

it’s so done.

Mr. Madden: We will do that.

The Court: Okay.

(COUNSEL AND STAFF CONFER)

(COURT AND STAFF CONFER)

(COUNSEL CONFER)

The Court: Okay. I don’t think I’ve closed actually the record. I 

think we’ve been on the record the whole time while you’ve been 

assembling the exhibits, but I will note that Attorney Mottinger is 

here. The defendant has been taken back to the jail. Attorney 

Madden is here, and Attorney Preusse for the State. You’re going 

through, and with the exception of Exhibit 121—and, by the way, 

do you need—Attorney Mottinger, do you need to look at the folder 

that contains the instructions I gave you?

Mr. Mottinger: No, sir.”

[¶13] From the context provided by the transcript, no evidence supports 

Rademacher’s allegation he was removed from the courtroom during trial. 

Rather, the record shows Rademacher was present when the proceedings 

resumed after a brief recess, and during closing arguments. No breaks or 

recesses were taken between initial instructions, closing arguments, and the 

reading of final jury instructions. Therefore, everything available in the record 

suggests Rademacher was present for these proceedings and nothing shows he 

was not. Rademacher has not met his burden of showing the district court

erred by denying his right to be present during jury instruction and closing 

arguments.

III

[¶14] Rademacher argues the district court violated his right to be present at 

trial when he was removed from the courtroom after the jury was excused for 
8

deliberations. Temporally, this claim starts when the prior claim ended—after 

the district court noted “The defendant has been taken back to the jail.”

[¶15] Rademacher’s claim involves two activities occurring in the courtroom: 

(1) review of the folder with jury instructions being sent to the jury room; and 

(2) the handling of trial exhibits. No objection was raised by Rademacher’s 

attorney to handling these activities when Rademacher was not personally 

present; therefore, we review each claim for obvious error. Kruckenberg, 2008

ND 212, ¶ 13.

A

[¶16] Rademacher alleges the district court erred by not having him present 

when it asked whether the defense wanted to review the folder containing jury 

instructions that was being sent to the jury room. Rademacher argues, 

“although his defense attorney did not want to review it, it is entirely possible 

that Mr. Rademacher would have wanted to do so.” Rademacher points to no 

facts but instead surmises, “Such a review could have uncovered some sort of 

previously unnoticed error in the assembling of the instructions, but Mr. 

Rademacher was denied that opportunity.”

[¶17] Rademacher’s burden on appeal is to establish the district court erred. 

L.C., 1997 ND 96, ¶ 18. He has not done so, and instead only suggests he might 

have wanted to review the file, and if he chose to review the file, he might have 

caught some unspecified and unnamed error. This assignment of error by 

Rademacher’s argument is inadequate for us to proceed to the next inquiry 

whether the review of a jury instruction folder is part of trial requiring his 

presence. 

B

[¶18] Rademacher claims the district court erred by not having him present 

for counsels’ discussion of trial exhibits. That discussion included consideration 

whether three large exhibits should stay in the courtroom or go to the jury 

room, and what to do about a missing trial exhibit.
9

[¶19] Rademacher claims the district court erred in not having him present 

during the discussion and decision about missing Exhibit 121. Exhibit 121 was 

a drawing of the crime scene Rademacher made during a police interview. The 

original exhibit was lost, and counsel and the court discussed whether the jury 

should be given a copy. 

[¶20] Rademacher argues on appeal that counsel “and the trial court also 

discussed exhibit # 121, essentially deciding the resolution of the matter, before 

allowing Mr. Rademacher to return to the proceeding.” He also claimed he 

“should have been present when the issue was discovered, discussed and 

decided, rather than brought back afterwards and informed of the trial court’s 

decision.” 

[¶21] The transcript shows Rademacher was brought back into the courtroom 

for much of the conversation regarding Exhibit 121, the decision to use a copy, 

and handling the three large exhibits. 

“The Court: All right. That’s what I’ll do then. All right. Then, aside 

from again, 121, are you—do you agree that we have the record to 

take back to the jury, that is the instructions and the exhibits with 

exception of 121?

Mr. Madden: Yes, Your Honor.

The Court: Okay. All right. So what are we going to do about 

Exhibit 121? I have a faint recollection of what that is, but maybe 

a more distinct statement of what Exhibit 121 that can’t be found 

is, Attorney Madden.

Mr. Madden: Well, Your Honor, I was going to ask Attorney 

Mottinger what his thoughts were. This is probably going to need 

Mr. Horvath—or not Mr. Horvath, Mr. Rademacher in here for this. 

I know that the defense knows what it is, and we could probably 

make another copy of it if need be. We all know what it is.

The Court: Okay.

Mr. Mottinger: Do you have a copy of it somewhere, Nathan?
10

Mr. Madden: I have the original upon which it is based. Yes.

The Court: Might that work, Attorney Mottinger?

Mr. Mottinger: As far as I’m concerned, it would work.

The Court: Okay.

Mr. Madden: I just don’t know if that’s something—I think we 

might want to have the defendant in here to make sure that we’re 

all on the same page so it doesn’t come back and causes problems 

later.

The Court: What do you think, Attorney Mottinger?

Mr. Mottinger: I tend to agree with Mr. Madden in light of—

The Court: Okay. Well, get him here right away.

Mr. Madden: All right.

The Court: In the meantime, I’m taking a little break and then I’m 

coming back in. Okay.

(RECESS)

The Court: Open the record in State v. Rademacher. The numbers 

will be set out. And the jury is not—we’re in courtroom 101. The 

jury is not here. The attorneys have been assembling or putting 

together, making sure that we had all the exhibits to be taken back 

to the jury in the jury room along with the instructions. And 

Attorney—or Mr. Rademacher had been taken back to jail, but he’s 

again in court with his attorney, Attorney Mottinger, and Attorney 

Preusse and Madden are for the State.”

This portion of the transcript shows Rademacher was brought back to the 

courtroom with his lawyer for the discussion about whether to substitute a 

copy of Exhibit 121 for the lost original. The transcript subsequently shows he 

was present when his lawyer agreed to use the substitute exhibit. Contrary to 
11

his assertion, Rademacher was present for the discussion and decision, and 

was not “brought back afterwards and informed of the trial court’s decision.”

[¶22] Regarding the large exhibits, Rademacher makes only a bare argument 

that his absence was a violation. He cites no authority, and he makes no 

contention the decision about how to handle these exhibits was anything but 

an administrative housekeeping matter. Moreover, Rademacher is factually 

wrong in claiming he was not present for the discussion and decision.

[¶23] The transcript shows Rademacher was present in the courtroom when 

the court revisited how the large exhibits would be handled. Immediately 

following the agreement on Exhibit 121, the transcript shows the following 

discussion occurred with Rademacher present:

“The Court: Okay. And still not quite done. Just make sure—are 

the parties in agreement that the large exhibits, that would be the 

board, the tire, and the slide, can remain in the courtroom. The 

bailiffs can inform the jurors if they want to see those, they can be 

brought back to them. State—defense?

Mr. Mottinger: That’s fine.

Mr. Madden: Yes, Your Honor. Exhibit number 1, the vehicle tire, 

Exhibit 2, the sandbox side portion, and Exhibit 3, the red plastic 

slide, that would make sense.”

[¶24] Rademacher has not shown the district court erred in conducting a 

portion of the trial without him present. Instead, the record shows he was 

present for the discussion and decision how exhibits would be handled. 

Therefore, Rademacher’s argument failed to establish he was excluded from 

the proceedings, making it unnecessary for us to proceed to the next inquiry 

whether the discussions and decisions about trial exhibits were a part of trial 

requiring his presence.
12

IV

[¶25] Rademacher argues this Court should amend N.D.R.Crim.P. 43 due to 

what he describes as contradictions between N.D.R.Crim.P. 43(b)(3) and 

43(a)(1)(B). 

[¶26] Requesting within an appellant brief that a procedural rule be amended 

is improper. Under N.D.R.Proc.R. § 3.1, “Any person interested in the adoption, 

amendment, or repeal of a procedural rule, administrative rule, or 

administrative order, may file with the Clerk of the Supreme Court a petition 

to adopt, amend, or repeal a procedural rule, administrative rule, or 

administrative order.” Rademacher can petition under N.D.R.Proc.R. § 3.1 to 

request an amendment of N.D.R.Crim.P. 43, and we decline to circumvent that 

process in an adjudicative decision.

V

[¶27] We affirm the criminal judgments. 

[¶28] Jon J. Jensen, C.J.

Gerald W. VandeWalle

Daniel J. Crothers

Lisa Fair McEvers

Jerod E. Tufte