IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2023 ND 80

State of North Dakota, Plaintiff and Appellee

v.

Benjamin Robert Hannesson, Defendant and Appellant

No. 20220244

Appeal from the District Court of Pembina County, Northeast Judicial District, 

the Honorable Lonnie Olson, Judge.

AFFIRMED.

Opinion of the Court by McEvers, Justice.

Garret M. Fontaine, State’s Attorney, Cavalier, ND, for plaintiff and appellee.

Peter B. Wold, Minneapolis, MN, for defendant and appellant.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

APRIL 26, 2023 

STATE OF NORTH DAKOTA
1

State v. Hannesson

No. 20220244

McEvers, Justice.

[¶1] Benjamin Hannesson appeals from a criminal judgment. He argues the 

evidence is insufficient to support the guilty verdicts and his right to due 

process was violated by prosecutorial misconduct. We affirm. 

I

[¶2] The State charged Hannesson with gross sexual imposition, burglary, 

theft of property, terrorizing, felonious restraint, and two counts of physical 

obstruction of a government function. The charges were based on an incident 

that occurred near Walhalla. The State alleged Hannesson broke into a 

woman’s home in the middle of the night, restrained her, sexually assaulted 

her, stole money, and threatened to slit her throat if she called the police.

[¶3] At trial, Hannesson objected while the State was questioning a Bureau 

of Criminal Investigation special agent about the boot impressions left at the 

scene of the crime. While responding to Hannesson’s objection, and in the 

presence of the jury, the State made the following comment: “There will be an 

opportunity and defense counsel could certainly call experts to testify what 

they observed based on their differing training and experience.” Hannesson 

objected to the State’s comment, requested it be stricken, and then questioned 

the agent on voir dire regarding his qualifications. Afterwards, the court 

admonished the jury as follows:

First of all, any statements made by the State pertaining to 

any burden on the defense to call any witnesses, at all, are 

improper. And the State -- well, the defense has no obligation to 

present any evidence, witnesses, or testimony, or experts for that 

reason. So if there was any comments made in regard to defense 

having the opportunity to bring anything, they do not have to do 

so. So that would be stricken from the record, if they were made.

Hannesson moved to dismiss or, alternatively, for a mistrial, arguing the 

State’s comments impermissibly shifted the burden of proof to the defendant. 
2

The court denied his motion. The jury returned guilty verdicts on every count 

except for the obstruction charges. Hannesson filed a motion under 

N.D.R.Crim.P. 29 and 33 challenging the sufficiency of the evidence, which the 

court denied. 

II

[¶4] Hannesson argues the district court erred when it denied his motion for 

a mistrial. He asserts the State’s comment about his opportunity to call an 

expert witness violated his right to due process by impermissibly shifting the 

burden of proof to him.

[¶5] Ordering a mistrial is an “extreme remedy” that is only appropriate 

when there is a fundamental defect or occurrence at trial that makes it evident 

that continuing would be “productive of manifest injustice.” State v. Carlson, 

2016 ND 130, ¶ 11, 881 N.W.2d 649. We generally review a district court’s 

decision on a motion for a mistrial for an abuse of discretion. State v. Bazile, 

2022 ND 59, ¶ 5, 971 N.W.2d 884. However, “[p]rosecutorial misconduct may 

so infect the trial with unfairness as to make the resulting conviction a denial 

of due process.” City of Bismarck v. Sokalski, 2016 ND 94, ¶ 10, 879 N.W.2d 88 

(quoting State v. Jasmann, 2015 ND 101, ¶ 5, 862 N.W.2d 809). When the basis 

for a mistrial motion is prosecutorial misconduct, we apply the de novo 

standard of review to determine whether facts rise to the level of a 

constitutional violation. Bazile, at ¶ 5; State v. Foster, 2020 ND 85, ¶ 9, 942 

N.W.2d 829.

[¶6] We first determine whether the prosecutor’s actions were misconduct. 

Foster, 2020 ND 85, ¶ 9. If so, we analyze whether the misconduct had a 

prejudicial effect. Id. Although prosecutorial misconduct may create unfairness 

amounting to a due process violation, “not every assertion of prosecutorial 

misconduct ‘automatically rises to an error of constitutional dimension.’” 

Bazile, 2022 ND 59, ¶ 7 (quoting Foster, at ¶ 17). 

To determine whether a prosecutor’s misconduct rises to a level of 

due process violation, we decide if the conduct, in the context of the 

entire trial, was sufficiently prejudicial to violate a defendant’s due 
3

process rights. If conduct was sufficiently prejudicial, we then 

consider the probable effect the prosecutor’s improper comment 

would have on the jury’s ability to fairly judge the evidence. In 

reviewing claims involving improper prosecutorial comments, we 

have noted the following: Inappropriate prosecutorial comments, 

standing alone, would not justify a reviewing court to reverse a 

criminal conviction obtained in an otherwise fair proceeding.

Bazile, at ¶ 7 (cleaned up). Curative jury instructions will generally remove 

prejudice caused by a prosecutor’s improper statements because the jury is 

presumed to follow the district court’s instructions. Id.

[¶7] Even assuming the State’s comment in this case was improper, which the 

State appears to have conceded at oral argument, Hannesson has not 

demonstrated the misconduct amounts to a constitutional violation. The 

district court’s opening instructions informed the jury the State bore the 

burden of proof, the court struck the comment, gave a prompt curative 

instruction after Hannesson objected, and the court’s closing instructions 

reiterated the State’s burden on each charge. The jury was repeatedly 

reminded the State bore the burden of proof during closing arguments. More 

than twenty witnesses testified, and the trial spanned eight days. Given the 

court’s jury instructions, its curative admonishment, and the lengthy nature of 

the trial, we are not convinced this single comment made by the State was 

sufficiently prejudicial to violate Hannesson’s right to due process. 

III

[¶8] Hannesson also argues the evidence presented at trial is insufficient to 

sustain the guilty verdicts. Based on our review of the record, we conclude 

substantial evidence supports the verdicts. See N.D.R.App.P. 35.1(a)(3) 

(providing for summary affirmance when the verdict is supported by 

substantial evidence). 

IV

[¶9] We affirm the judgment. 
4

[¶10] Jon J. Jensen, C.J.

Daniel J. Crothers

Lisa Fair McEvers

Jerod E. Tufte

Douglas A. Bahr