IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2022 ND 96

State of North Dakota, Plaintiff and Appellee

v.

Randy Joseph Houle, Defendant and Appellant

No. 20210331

Appeal from the District Court of Stutsman County, Southeast Judicial 

District, the Honorable Troy J. LeFevre, Judge.

AFFIRMED.

Opinion of the Court by McEvers, Justice.

Frederick R. Fremgen, State’s Attorney, Jamestown, ND, for plaintiff and 

appellee.

Benjamin C. Pulkrabek, Mandan, ND, for defendant and appellant; submitted 

on brief.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

MAY 12, 2022 

STATE OF NORTH DAKOTA
1

State v. Houle

No. 20210331

McEvers, Justice.

[¶1] Randy Joseph Houle appeals from a criminal judgment entered after a 

jury found him guilty of aggravated assault and false information to law 

enforcement. On appeal, Houle argues the district court erred in improperly 

instructing the jury regarding circumstantial evidence. We affirm.

I

[¶2] On September 11, 2020, Houle was charged with aggravated assault, 

criminal attempt, and false information to law enforcement. A jury trial was 

held in November 2021.

[¶3] Before trial, Houle submitted an amended pre-trial memorandum. 

Included in Houle’s memorandum were the Defendant’s Proposed Jury 

Instructions. Houle’s requested instructions consisted of the North Dakota

pattern instruction numbers and titles. One of the instructions Houle 

requested was pattern instruction K-5.16, regarding the jury’s use of direct and 

circumstantial evidence. The State similarly requested pattern instruction K5.16. The district court included the language as provided in the pattern 

instruction. Houle was provided a set of the jury instructions on the first day 

of trial and had an opportunity to object to the instruction or to request further 

jury instructions. Houle was given another opportunity to address the court 

regarding jury instructions after the parties rested. Houle did not object to the 

instructions he requested or request any further instruction regarding the use 

of circumstantial evidence prior to the instructions being read to the jury.

[¶4] The charge of criminal attempt was dismissed following Houle’s 

N.D.R.Crim.P. 29 motion after the State’s case in chief. The jury convicted

Houle of the remaining charges of aggravated assault and false information to 

law enforcement. Houle was sentenced to five years with one year suspended 

and credit for time served.
2

II

[¶5] On appeal, Houle contends the district court failed to properly instruct 

the jury. He argues the court’s failure to include the following language in the 

instruction on direct and circumstantial evidence affected his substantial 

rights:

A person can be convicted on circumstantial evidence alone if the 

circumstantial evidence is consistent. If one piece of circumstantial 

evidence contradicts another piece of circumstantial evidence, the 

circumstantial evidence is not consistent. You can convict a person 

on circumstantial evidence alone if the circumstances proved 

exclude every reasonable theory except that the accused is guilty.

Houle argues this instruction was recently used in another case in district 

court. However, Houle provides no citation to a case where this Court, or any 

other appellate court, has considered the use of the suggested jury instruction 

language.

[¶6] The State argues Houle’s asserted “exclude every reasonable theory” 

instruction is disfavored and there was no error in the jury instructions as 

given, relying in part on Holland v. United States, 348 U.S. 121 (1954). There, 

the petitioners claimed the jury instructions were erroneous where the trial 

court refused “to instruct that where the Government’s evidence is 

circumstantial it must be such as to exclude every reasonable hypothesis other 

than that of guilt.” Id. at 139. The United States Supreme Court stated, “There 

is some support for this type of instruction in the lower court decisions, but the 

better rule is that where the jury is properly instructed on the standards for 

reasonable doubt, such an additional instruction on circumstantial evidence is

confusing and incorrect.” Id. at 139-40 (internal citations omitted). The Court 

concluded that circumstantial evidence “is intrinsically no different from 

testimonial evidence,” and if the jury finds the defendant guilty beyond a 

reasonable doubt, “we can require no more.” Id. at 140.

[¶7] We need not address either argument. The district court used the 

instruction on circumstantial evidence requested by Houle. The jury 

instructions were discussed at trial. Houle did not object to the jury 
3

instructions or request any additional instructions. Rather, Houle agreed to 

the jury instructions; therefore, any error alleged was waived, and the obvious 

error analysis under N.D.R.Crim.P. 52(b) does not apply. “It is a cardinal rule 

of appellate review that a party may not challenge as error a ruling or other 

trial proceeding invited by that party.” State v. Rende, 2018 ND 56, ¶ 9, 907 

N.W.2d 361 (quoting State v. White Bird, 2015 ND 41, ¶ 23, 858 N.W.2d 642); 

see also State v. Watkins, 2017 ND 165, ¶ 14, 898 N.W.2d 442 (stating 

defendant cannot seek reversal based on an error he invited by agreeing to the 

content of a jury verdict form). The “invited error doctrine” applies unless a 

constitutional error is structural, but few constitutional errors qualify as 

structural. White Bird, at ¶ 24; see also United States v. Marcus, 560 U.S. 258, 

263 (2010) (discussing short list of recognized structural errors, of which the 

only jury instruction noted is an erroneous reasonable doubt instruction). 

Houle concedes any alleged error was not constitutional in nature. Houle may 

not now seek reversal based on an error he invited.

III

[¶8] The criminal judgment is affirmed.

[¶9] Jon J. Jensen, C.J. 

Gerald W. VandeWalle 

Daniel J. Crothers 

Lisa Fair McEvers 

Jerod E. Tufte