IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2024 ND 79

State of North Dakota, Plaintiff and Appellee

v.

Jason Robert Pederson a/k/a Katheryn Pederson, Defendant and Appellant

No. 20230318

Appeal from the District Court of Cass County, East Central Judicial District, 

the Honorable Constance L. Cleveland, Judge.

AFFIRMED.

Opinion of the Court by Bahr, Justice.

Jason Van Horn, Assistant State’s Attorney, Fargo, ND, for plaintiff and 

appellee.

Samuel A. Gereszek, Grand Forks, ND, for defendant and appellant.
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State v. Pederson

No. 20230318

Bahr, Justice.

[¶1] Jason (a.k.a. Katheryn) Pederson appeals from a criminal judgment 

entered following a jury verdict finding her guilty of one count of terrorizing. 

We conclude Pederson did not establish a Brady violation. We further conclude 

Pederson did not preserve the issue of insufficient evidence because she failed 

to move for acquittal under N.D.R.Crim.P. 29, and did not argue obvious error.

We affirm.

I

[¶2] Following the termination of her employment, Pederson filed an 

employment discrimination lawsuit in federal court against her former 

employer. On December 29, 2022, Pederson sent an email to her former 

employer, writing, “Consistent with the most recent order/motion I intend to 

retrieve damages. If the Defending party wishes to pay $107,000 within 7 days, 

else I will retrieve damages through the taking of physical assets.” On January 

6, 2023, Pederson sent a second email, which stated, “Consistent with the 

previous email and aforementioned court filings I’ll be in the Defendant’s 

location some time next week with my tools. Please inform the Defendant’s 

employees to stay out of the way. I would like to avoid any unnecessary deaths 

if at all possible.”

[¶3] After receiving these emails, Pederson’s former employer contacted law 

enforcement. Officer Tanner Anderson spoke with Pederson by telephone on 

January 8, 2023 to inform her she was trespassed from her former employer’s 

property, meaning she could not go on her former employer’s property. Officer 

Anderson recorded the conversation on his bodycam.

[¶4] Officers arrested Pederson on January 10, 2023. The State charged 

Pederson with one count of terrorizing. The charge was based on her emails to 

her former employer. Pederson submitted a N.D.R.Crim.P. 16 disclosure 

request to the State, and filed a motion to compel discovery. The State did not 
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turn over to Pederson the bodycam recording of Officer Anderson’s January 8, 

2023 telephone conversation with her.

[¶5] The district court held a two-day jury trial. Pederson represented herself.

At the pretrial conference, Pederson argued the State violated Brady because 

it did not provide her the recording of her conversation with Officer Anderson. 

The court stated they would address the issue when Officer Anderson takes 

the stand.

[¶6] After a recess, the State informed the district court that there would 

have been a bodycam of the conversation between Officer Anderson and 

Pederson. The State argued any statements on the recording are not relevant

because they relate to the trespass, not the terrorizing charge. The State 

explained it did not provide the recording to Pederson because the recording 

was filed in the civil trespass file, not the criminal case. Pederson responded, 

“the State has acknowledged, there is a recording and they were aware of it. 

So I don’t think [Officer Anderson] should be able to testify if there is a 

recording and the State failed to turn it over in time.” The court found the 

State’s failure to disclose the recording was not intentional, and that because 

the recording exists, although in a different file, the State must provide it 

before Officer Anderson is called as a witness. The court also said it would 

provide Pederson time to review the recording and decide how to use it before 

Officer Anderson testifies.

[¶7] Following a recess during voir dire, the State informed the district court 

it did not know if the recording still exists. After the court stated it is not sure 

what the appropriate remedy is, or even what remedy Pederson is requesting, 

Pederson responded, “I would say that I would want Anderson to testify with 

regard to his failure to provide the recording.” The court responded that, 

depending on how things progress, later motions can be made regarding the 

issue.

[¶8] The State updated the district court and Pederson regarding the 

recording after the noon recess. The State explained that because the bodycam 

video was logged in under the trespass file, it was “automatically deleted after 
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180 days. So the video itself is no longer in existence, and that’s the update 

that I have for the court and for Ms. Pederson.” The court found the State’s 

lack of disclosure was not intentional, and held preventing Officer Anderson 

from testifying is not warranted based on the nature of the recording and the 

State’s disclosure of a police report and email regarding the conversation 

between Officer Anderson and Pederson. It continued, “We are acknowledging 

that a recording did exist, and certainly determining what happened to that 

and what would be available to Ms. Pederson on cross-examination should the 

State choose to call Officer Tanner Anderson.”

[¶9] During the State’s direct examination of Officer Anderson, the State 

questioned Officer Anderson about informing Pederson of being trespassed, 

about him recording the conversation on his bodycam, and about what 

happened to the recording. Pederson cross-examined Officer Anderson about 

the recording being deleted, among other things.

[¶10] On the second day of trial, the State informed the district court and 

Pederson that it located two bodycam recordings relating to the case. Neither 

recording was of the conversation between Officer Anderson and Pederson. The 

court held an in camera review of the recordings with the State and Pederson 

present. After the in camera review of the two videos, the court noted the 

recording of the conversation between Officer Anderson and Pederson is still 

missing. After stating the recording of the communication between Officer 

Anderson and her is still missing, Pederson said, “I don’t know what the 

remedy for that would be.” Pederson did not make any motion or request any 

relief due to the missing recording. The trial continued. At the conclusion of 

trial, the jury found Pederson guilty of terrorizing.

II

[¶11] Pederson argues the State’s failure to preserve and disclose the recording 

of her conversation with Officer Anderson is a Brady violation.

[¶12] Under Brady v. Maryland, 373 U.S. 83, 87 (1963), “suppression by the 

prosecution of evidence favorable to an accused violates due process if the 

evidence is material to guilt or punishment irrespective of the good faith or bad 
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faith of the prosecution.” State v. Kolstad, 2020 ND 97, ¶ 19, 942 N.W.2d 865. 

A Brady violation occurs when:

(1) the government possessed evidence favorable to the defendant; 

(2) the defendant did not possess the evidence and could not have 

obtained it with reasonable diligence; (3) the prosecution 

suppressed the evidence; and (4) a reasonable probability exists 

that the outcome of the proceedings would have been different if 

the evidence had been disclosed.

State v. Schweitzer, 2021 ND 109, ¶ 3, 961 N.W.2d 310 (quoting Kolstad, at 

¶ 19). “The undisclosed material must be plainly exculpatory; Brady does not 

apply to evidence that might have been exculpatory.” State v. Horn, 2014 ND 

230, ¶ 21, 857 N.W.2d 77. “There is no Brady violation if the defendant fails to 

demonstrate the evidence was favorable to him.” Id.

[¶13] The State admits it had, but never turned over to Pederson, the recording 

of her conversation with Officer Anderson. The State explains the recording 

was saved under a different file number, not retrieved when requested by 

Pederson, and deleted after 180 days. Although the State possessed the

recording and did not disclose it to Pederson, we do not need to decide whether 

the State’s action constitutes suppression of the recording because Pederson 

has not satisfied the first prong of the Brady test. See Kolstad, 2020 ND 97, 

¶ 23 (“Evidence that has not been collected or preserved raises issues involving 

categories one and two but does not invoke Brady or an analysis under category 

three.”).

[¶14] Under the first prong, Pederson must demonstrate the recording was 

favorable to her or plainly exculpatory. As argued by the State, and found by 

the district court, the recording did not directly relate to the terrorizing charge 

against Pederson. The State charged Pederson for conduct occurring between 

November 29, 2022 and January 6, 2023. Pederson sent the emails that are the 

basis of the charge on December 29, 2022 and January 6, 2023. Her 

conversation with Officer Anderson was on January 8, 2023, two days after 

Pederson sent the second email. The State did not charge Pederson with 

terrorizing based on her conversation with Officer Anderson. Pederson has not 
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demonstrated how a recording of her conversation with Officer Anderson, days 

after she sent the emails, would exculpate her of the charge of terrorizing.

[¶15] The district court did not err when it determined the recording was not 

relevant to the charge of terrorizing. We conclude Pederson has not met her 

burden of demonstrating the recording was evidence favorable to her.

III

[¶16] Pederson argues there is insufficient evidence to sustain a conviction.

[¶17] “Regarding the preservation of a sufficiency of the evidence challenge for 

appeal, this Court has held the defendant must move for acquittal under 

N.D.R.Crim.P. 29 to preserve the issue of sufficiency of the evidence for review 

in a jury trial.” State v. Rourke, 2017 ND 102, ¶ 7, 893 N.W.2d 176. “A selfrepresented litigant is not granted leniency because of his status and is bound 

by the rules of procedure.” State v. Hamre, 2019 ND 86, ¶ 18, 924 N.W.2d 776.

[¶18] Pederson did not move for acquittal under N.D.R.Crim.P. 29. Therefore, 

the issue of sufficiency of the evidence is not preserved. Pederson also did not 

brief or argue “grounds for seeking review of an issue not preserved,” as 

required by N.D.R.App.P. 28(b)(7)(B)(ii). See State v. Wiese, 2024 ND 39, ¶ 7

(“Appellate rules must be complied with and treated respectfully.”). An 

“exception to the requirement of a motion for judgment of acquittal is if the 

trial court committed obvious error.” Rourke, 2017 ND 102, ¶ 7 (quoting City 

of Fargo v. Lunday, 2009 ND 9, ¶ 5, 760 N.W.2d 136). However, Pederson did 

not argue the district court committed obvious error. Therefore, this Court will 

not consider whether the court committed obvious error. State v. Hansford, 

2019 ND 52, ¶ 29, 923 N.W.2d 113 (“We only decide issues that have been 

thoroughly briefed and argued.”).

[¶19] We conclude Pederson did not preserve the issue of whether there was 

sufficient evidence to sustain her conviction.
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IV

[¶20] We have considered the parties’ other arguments and conclude they are 

unnecessary for the decision or are without merit. We affirm.

[¶21] Jon J. Jensen, C.J.

Daniel J. Crothers

Lisa Fair McEvers

Jerod E. Tufte

Douglas A. Bahr