Waived Jury-Instruction Challenges Define the Elements for Sufficiency Review: State v. Guthmiller (2025 ND 162)

Introduction

In State v. Guthmiller, 2025 ND 162, the North Dakota Supreme Court reaffirmed two interlocking principles of criminal appellate review: (1) when a defendant knowingly agrees to a jury instruction, any challenge to that instruction is waived and not subject to obvious error review; and (2) unchallenged jury instructions become the “law of the case,” thereby defining the elements against which the sufficiency of the evidence is judged on appeal.

The case arises from a conviction for failure to register as a sexual offender under N.D.C.C. § 12.1-32-15(9). On appeal, the defendant, Jonathan James Guthmiller, argued the State failed to prove that the charged conduct occurred in Grand Forks County or within North Dakota. The State responded that the defendant expressly declined to object to the jury instructions that did not include any location element, did not move for a judgment of acquittal under N.D.R.Crim.P. 29, and raised the “instructional error/plain error” argument only belatedly in his reply brief.

Writing for a unanimous Court, Justice Bahr affirmed. The Court held that Guthmiller affirmatively waived any challenge to the jury instructions, foreclosing plain error review, and that because unchallenged instructions become the law of the case, the sufficiency analysis did not require the State to prove location as an element.

Summary of the Opinion

Facts and charge: Guthmiller pleaded guilty in 2017 to luring a minor by computer, rendering him subject to sex offender registration obligations, including semi-annual in-person registration (February and August) and prompt reporting of changes in identifying information. In September 2024 he was charged with failing to register a valid phone number within three days of the change and failing to register in August 2024, in violation of N.D.C.C. § 12.1-32-15(9).
Pretrial and trial: The State proposed jury instructions that did not include the location of the offense as an essential element and cited State v. Samaniego, 2022 ND 38, ¶ 12, to support the proposition that location is not an essential element. Guthmiller, representing himself, did not propose instructions and expressly told the trial court he understood and had no objection to the elements instruction. He did not move for acquittal under Rule 29. The jury convicted.
Appeal: Guthmiller argued insufficiency of evidence based on the State’s failure to establish the conduct occurred in Grand Forks County or North Dakota. In reply, he newly asserted the jury-instruction error and requested obvious error review under N.D.R.Crim.P. 52(b).
Holdings:
- By affirmatively agreeing to the elements instruction, Guthmiller waived any instructional error. Waiver forecloses obvious error review under Rule 52(b).
- Unchallenged instructions become the law of the case; because the elements instruction did not include location, the State was not required to prove it for purposes of the sufficiency analysis.
- Viewing the trial record in the light most favorable to the verdict and applying the instructed elements, there was sufficient evidence to support the conviction.

Analysis

Precedents Cited and Their Influence

State v. Noble, 2023 ND 119, and State v. Dahl, 2022 ND 212: These cases supply the standard of review for sufficiency claims: the Court asks only whether competent evidence exists from which a rational juror could find guilt beyond a reasonable doubt, viewing the record in the light most favorable to the verdict and without reweighing credibility or conflicts. Guthmiller’s sufficiency claim was evaluated under this deferential framework (¶ 7).
State v. Gaddie, 2022 ND 44: Reinforces N.D.R.Crim.P. 30(c) preservation: a party must distinctly object to a jury instruction to preserve the issue for appellate review (¶ 8). Because Guthmiller did not object, preservation failed unless the Court could reach obvious error—which it could not due to waiver.
State v. Pulkrabek, 2022 ND 128, and State v. Watkins, 2017 ND 165: Clarify the distinction between forfeiture (failure to timely assert a right) and waiver (intentional relinquishment of a known right) (¶ 8). This distinction is pivotal: only forfeited errors can be reviewed for obvious error; waived errors cannot.
State v. Studhorse, 2024 ND 110: “Rule 52(b) applies only to forfeited errors” and not to waived or invited errors (¶ 8). The Court relied on this to reject plain error review once it found waiver (¶ 9).
State v. Kennedy, 2025 ND 130: Confirms that the Court does not review waived errors (¶ 8), bolstering the conclusion that Guthmiller’s instructional challenge was foreclosed.
State v. Wiese, 2024 ND 39, and State v. Yoney, 2020 ND 118: Apply the invited error doctrine to bar obvious error review where a defendant affirmatively agrees to the instruction. This doctrine guards against a “sandbagging” strategy of inviting an error at trial to leverage reversal on appeal (¶ 8).
State v. Vervalen, 2024 ND 124; State v. Houle, 2022 ND 96; and Studhorse again: Examples where explicit acquiescence in instructions constituted waiver (¶ 9). Guthmiller’s “I understand” and “No” objection response fit squarely within these holdings.
State v. White Bird, 2015 ND 41, and State v. Lee, 2004 ND 176: Articulate the contemporaneous objection rule’s rationale: timely objections allow the trial court to cure potential prejudice (¶ 8). Failure to object—or, as here, express agreement—precludes later attack.
State v. Johnson, 2021 ND 161; State v. Aune, 2021 ND 7; State v. Kenny, 2019 ND 218; State v. Rogers, 2007 ND 68; State v. Helton, 2007 ND 61: Establish and apply the “law of the case” principle to unchallenged instructions. These decisions frame sufficiency review around the elements as instructed to the jury (¶¶ 11–12). In Guthmiller, this meant the State did not have to prove location because it was not part of the instructed elements.
State v. Davis-Heinze, 2022 ND 201: Affirms that the Court may review forfeited (but not waived) errors for obvious error (¶ 8).
State v. Samaniego, 2022 ND 38: Cited by the State below to argue that “location of the conduct is not an essential element” (¶ 3). Importantly, the Supreme Court did not decide that question in Guthmiller; it resolved the appeal purely on waiver and law-of-the-case grounds.

Legal Reasoning

Framing of the appellate claim: Guthmiller’s sufficiency argument hinged on the State’s alleged failure to prove that the charged conduct occurred in Grand Forks County or within North Dakota (¶ 6, ¶ 11). The State countered with a preservation challenge: he neither objected to the instruction nor sought a Rule 29 acquittal, and raised plain error only in reply.
Waiver, not forfeiture: The Court examined the record of the pretrial status conference the day before trial, where the judge provided and explained the opening instructions and asked about objections to the elements instruction. Guthmiller, acting pro se, said he understood the instruction and had “No” objection (¶ 4). This was an intentional relinquishment—not mere silence. Under Studhorse, Vervalen, Houle, and Yoney, that constitutes waiver (¶ 9).
No obvious error review: Because the error was waived, not forfeited, Rule 52(b)’s obvious error review did not apply (¶ 8). The Court reiterated that it does not review waived errors (Kennedy) and that invited/waived error cannot be recast as plain error (Wiese; Studhorse) (¶ 8).
Law of the case and sufficiency: Having concluded the instruction challenge was waived, the Court applied the law-of-the-case doctrine. Unchallenged instructions define the elements the State was required to prove for sufficiency purposes (¶¶ 11–12). Because the elements instruction omitted any location requirement, the State did not need to prove the offense occurred in Grand Forks County or North Dakota for the sufficiency analysis. The Court thus evaluated the record only against the instructed elements (identity, duty to register, willful failure to register regarding a phone number change or August 2024 registration).
Application of the sufficiency standard: Viewing the evidence in the light most favorable to the verdict and granting the State all reasonable inferences, the Court held that a rational trier of fact could find the instructed elements beyond a reasonable doubt (¶ 13). While the opinion does not detail the trial evidence, the Court’s conclusion signals that the record included competent proof of identity, a registration obligation, and willful noncompliance relative to the specific reporting requirements at issue.

Impact and Implications

The decision in State v. Guthmiller does not announce a novel doctrine, but it meaningfully reinforces several practice-critical rules with real-world consequences for criminal litigation in North Dakota:

Waiver is decisive—even for pro se defendants: The Court’s application of waiver to a self-represented defendant underscores that affirmative agreement to instructions will foreclose appellate review. Trial judges often strive to protect pro se defendants by explaining instructions, but an express “No objection” remains binding. Defense counsel and judges should be scrupulous in ensuring a clear record of any objections—or explicit waivers—on the core elements instruction.
Sufficiency review is bounded by instructed elements: By reaffirming that unchallenged instructions are the law of the case for sufficiency, the Court signals that omission of a contested element from the instruction can be outcome-determinative on appeal. Defense counsel must propose or insist on instructions that incorporate all elements they believe are necessary, including, where applicable, venue or jurisdictional facts—else the sufficiency claim may be narrowed to the instructed theory.
Obvious error is not a backdoor for waived errors: The opinion further cements that obvious error review under Rule 52(b) is limited to forfeited errors. When a defendant says “No objection,” appellate courts will not rescue the claim via plain error review absent truly extraordinary circumstances not present here.
Venue/location questions remain open on the merits: The State cited Samaniego to argue that “location of the conduct is not an essential element” of the offense, but the Court expressly did not decide that issue. In a case where a defendant preserves a venue/location objection or proposes an instruction requiring the State to prove county or in-state commission, the Court may reach that question. Guthmiller therefore should not be read as substantive approval of omitting location from the elements across the board.
Strategic trial practice: Prosecutors drafting elements instructions will note that, if left unchallenged, the instruction defines the appellate sufficiency lens. Defense counsel should:
- Submit proposed instructions that include any contested element (e.g., venue or territorial jurisdiction) they deem essential.
- Make a clear Rule 30(c) objection on the record if the court declines the proposal.
- Preserve Rule 29 motions for acquittal if the State’s evidence is deficient, and renew them as appropriate.
- Avoid raising new claims for the first time in a reply brief.
Sex-offender registration enforcement: The opinion indirectly strengthens the enforceability of registration obligations by ensuring that challenges focusing on un-instructed elements will not succeed on appeal if not preserved. Still, prosecutors should be mindful that some venue and jurisdictional issues may be constitutional or statutory in nature and, if properly raised, could require proof distinct from the substantive elements of the offense.

Complex Concepts Simplified

Waiver vs. forfeiture vs. invited error:
- Forfeiture is a failure to timely assert a right (e.g., omitting an objection). Forfeited errors can sometimes be reviewed for obvious error under Rule 52(b).
- Waiver is the intentional relinquishment of a known right (e.g., expressly stating “No objection”). Waived errors are not reviewed for obvious error.
- Invited error is a species of waiver where a party induces or agrees to the very ruling later challenged. Courts decline to consider invited errors on appeal.
Obvious (plain) error, N.D.R.Crim.P. 52(b): A narrow safety valve allowing appellate review of unpreserved (forfeited) errors that are obvious, affect substantial rights, and seriously affect the fairness, integrity, or public reputation of judicial proceedings. It does not apply to waived errors.
Law of the case via unchallenged instructions: In North Dakota criminal appeals, when a party does not object to a jury instruction, that instruction governs the elements considered for sufficiency. Thus, appellate courts ask whether the evidence is sufficient to satisfy the elements as instructed, not as the appellant later claims they should have been.
Rule 29 motion for judgment of acquittal: A procedural mechanism to argue that the evidence is insufficient as a matter of law. While failure to make a Rule 29 motion does not bar an appellate sufficiency claim, making the motion can help preserve and sharpen deficiencies in the State’s case.
Venue/location vs. elements: Venue (the proper county or place of trial) and territorial jurisdiction (authority of the court over crimes committed within the state) are often distinct from the elements of the offense (facts the State must prove beyond a reasonable doubt to convict). Whether venue or location must be proved to the jury as part of the elements depends on statutory and constitutional law—and, critically, on what the jury is instructed without objection.
Sex offender registration duties (N.D.C.C. § 12.1-32-15): Registrants must periodically verify information and promptly report changes in identifying information (including phone numbers) within a prescribed timeframe. Willful noncompliance is criminalized under subsection (9).

Conclusion

State v. Guthmiller reinforces a disciplined approach to criminal appeals in North Dakota. The Court held that a defendant who expressly agrees to a jury instruction waives any challenge to it, thereby foreclosing obvious error review. It further held that unchallenged instructions become the law of the case, defining the elements for sufficiency review. Applied here, those doctrines meant that because the elements instruction omitted any location requirement, the State was not obliged to prove where the conduct occurred for purposes of appellate sufficiency. Viewing the record through that lens, the Court found the evidence sufficient and affirmed the conviction.

The decision carries practical lessons: objections to elements instructions must be clear and timely; self-represented status does not insulate defendants from waiver; and sufficiency challenges will be assessed against the elements as the jury was actually instructed. Although the Court did not resolve whether location is ever an essential element of the failure-to-register offense, it signaled that preservation and precise instruction-crafting will determine whether that question is reached in future cases.