                 Filed 10/03/19 by Clerk of Supreme Court

                  IN THE SUPREME COURT
                  STATE OF NORTH DAKOTA

                                2019 ND 239

State of North Dakota,                                  Plaintiff and Appellee
      v.
Marquis Smith,                                      Defendant and Appellant



                                No. 20180416

Appeal from the District Court of Burleigh County, South Central Judicial
District, the Honorable John W. Grinsteiner, Judge.

AFFIRMED.

Opinion of the Court by Tufte, Justice.

Tessa M. Vaagen, Assistant State’s Attorney, Bismarck, N.D., for plaintiff and
appellee.

Steven J. Fischer, Bismarck, N.D., for defendant and appellant.
                              State v. Smith
                              No. 20180416

Tufte, Justice.

      Marquis Smith appeals from a criminal judgment entered after a jury
found he was guilty of two counts of gross sexual imposition. Smith argues
the district court erred by failing to exclude evidence that he accessed
pornographic websites and by failing to give the jury an instruction limiting
the use of the evidence. We affirm.

                                      I

      In 2018, Smith was charged with two counts of gross sexual
imposition in violation of N.D.C.C. § 12.1-20-03(2)(a). The State alleged
Smith had sexual contact with a seven-year-old child on December 9-10,
2017. The alleged victim was the child of Smith’s girlfriend.

      Smith filed a motion in limine to exclude evidence from a cell phone
found in his possession at the time of his arrest. The evidence from the
phone’s web browsing history included web pages having titles describing
incest-themed pornography in December 2017. Smith argued any evidence
that he viewed pornography should be excluded because there was nothing
in the browsing history that showed he has an interest in children and the
evidence was irrelevant to the charged offenses under N.D.R.Ev. 401. He
also claimed the evidence would be unfairly prejudicial and potentially
confusing under N.D.R.Ev. 403.

      The State opposed the motion and gave notice of its intent to use
evidence of crimes, wrongs, or other acts under N.D.R.Ev. 404(b), including
evidence about Smith’s pornographic web searches related to incest and
videos depicting the alleged victim and the victim’s siblings in the bathtub.
The State argued Smith may allege he lacked intent to engage in sexual
contact with the alleged victim; the evidence was relevant to Smith’s intent,
opportunity, knowledge, absence of mistake, or lack of accident; and the
probative value of the evidence was not substantially outweighed by the
danger of unfair prejudice to Smith.

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      After a hearing, the district court denied Smith’s motion in limine.
The court found the web browsing history was relevant to Smith’s state of
mind, motive, intent, knowledge, and absence of mistake or accident. The
court also found the probative value of the evidence was not outweighed by
any prejudicial effect, and any unfair prejudice could be cured with a
limiting instruction to the jury.

      A jury trial was held. The jury found Smith guilty of both counts of
gross sexual imposition, and criminal judgment was entered.

                                      II

      Smith argues the district court erred by denying his motion in limine.
He contends the evidence of web browsing history was impermissible
character or propensity evidence prohibited under N.D.R.Ev. 404(a), the
court was required to perform a three-step analysis under State v. Aabrekke,
2011 ND 131, 800 N.W.2d 284, and the court failed to consider all three
steps. He claims the State’s purpose for introducing the evidence was to
establish that he was of a deviant sexual disposition in violation of
N.D.R.Ev. 404(a), rather than in support of any of the relevant exceptions
under N.D.R.Ev. 404(b).

      Smith presented his argument on appeal as whether the admission of
the web browsing evidence was prohibited under N.D.R.Ev. 404. However,
Smith failed to appropriately raise this issue before the district court. Smith
requested the court exclude the evidence under N.D.R.Ev. 401 and 403 in
his motion in limine. He did not argue the evidence should be excluded
under N.D.R.Ev. 404. The State gave notice of its intent to use Rule 404(b)
evidence, but Smith did not respond to the State’s notice.

      Smith raised N.D.R.Ev. 404 for the first time during the hearing on
his motion and admitted he did not argue the evidence would violate
N.D.R.Ev. 404 in his motion. The district court advised Smith he would be
allowed to address N.D.R.Ev. 404(b) for purposes of addressing the State’s
argument that the evidence was relevant to prove state of mind, motive,
intent, and absence of mistake or accident, but cautioned that if Smith was


                                      2
going to go further he should make a written response to the State’s Rule
404(b) notice. The court also stated it did not want the hearing to turn into
a Rule 404(b) motion hearing and would permit argument only “for the
purposes of the motion in limine today.” The court continued, “We’re not
going to go into the full scale argument on that and the Court make any
decision one way or another at this point.” Smith argued the evidence was
not relevant for motive or intent because the evidence did not show any
indication of pedophilia, and he stated he would skip the rest of his
argument about N.D.R.Ev. 404(b) and indicated it might be better
addressed at a later time. The State argued the evidence was relevant to
show Smith’s conduct was not an accident.

     Smith never filed a written response to the State’s Rule 404(b) notice
and did not file any other motions related to this evidence. Smith did not
request the court exclude the evidence under N.D.R.Ev. 404.

       On appeal, Smith claimed he objected to the admission of the evidence
at trial by stating that he wanted to preserve the objections he made at
previous hearings. However, that statement was made during a discussion
of a different issue:

      THE STATE: It’s just to let the Court and defense counsel know
      that at this time I’m going to be using, I guess, the order that
      the Court had issued under 803(24) regarding the child’s
      statement about sexual abuse. The Court ruled that the out-of-
      court statements were admissible here today and we’ve
      satisfied the requirement that the child testify at trial, so the
      State is just letting the Court know the plan so we don’t have to
      have too much uphill issues in front of the jury.
      THE COURT: All right. Anything for the record, [Smith],
      regarding objections to preserve any issues?
      SMITH’S ATTORNEY: The Court has already ruled on this
      issue. I would simply reserve the objections I previously made
      in prior hearings.

The objection also was not near in time to testimony about the web search
history. Smith’s request to preserve prior objections occurred after the child
testified, and the testimony about the web browser history was not

                                      3
presented until the next day. Smith’s reservation of his prior objections
related to the admissibility of out-of-court statements and not the evidence
about the web browsing history. Smith has not directed us to any other place
in the trial transcript showing he objected or preserved any prior objections
to the evidence about the web browsing history. Smith did not object to the
evidence during the trial.

      We have long held that issues not raised or considered in the district
court cannot be raised for the first time on appeal. State v. Dockter, 2019
ND 203, ¶ 8, 932 N.W.2d 98. We have explained:

      The purpose of an appeal is not to give the appellant an
      opportunity to develop new strategies or theories; rather, the
      purpose is to review the actions of the district court. The
      requirement that a party first present an issue to the trial court,
      as a precondition to raising it on appeal, gives that court a
      meaningful opportunity to make a correct decision, contributes
      valuable input to the process, and develops the record for
      effective review of the decision.

Id. (quoting Moe v. State, 2015 ND 93, ¶ 11, 862 N.W.2d 510) (citations and
quotations omitted).

       In State v. Brewer, 2017 ND 95, ¶ 4, 893 N.W.2d 184, we explained
objections to evidence under N.D.R.Ev. 403 and 404(b) must be made during
the trial or the claim of error will be waived:

             We have long held that an effective appeal of any issue
      must be appropriately raised in the trial court in order for us to
      intelligently rule on it. Under N.D.R.Ev. 103(a)(1), error may
      not be predicated upon a ruling which admits or excludes
      evidence unless a substantial right of the party is affected,
      and . . . a timely objection or motion to strike appears of record,
      stating the specific ground of objection, if the specific ground
      was not apparent from the context. A motion in limine seeking
      an evidentiary ruling must be decided without the benefit of
      evaluating the evidence in the context of trial. A renewed
      objection at the time the evidence is offered focuses the court on
      the objection in the trial context at which time both the


                                      4
      relevance and the potential for prejudice will be more
      discernable. A failure to object at trial acts as a waiver of the
      claim of error.

Id. (quoting State v. Steen, 2015 ND 66, ¶ 5, 860 N.W.2d 470).

       By failing to move to exclude the evidence of the web browser history
under N.D.R.Ev. 404 in a motion in limine and to object at trial, Smith failed
to give the district court an opportunity to rule on this issue. Smith forfeited
the issue, and the issue can be reviewed only for obvious error. See State v.
Morales, 2019 ND 206, ¶ 24, 932 N.W.2d 106. To establish obvious error,
the defendant has the burden to show: (1) error, (2) that was plain, and
(3) that affected his substantial rights. Id.

      However, Smith did not argue on appeal that the alleged error
constituted an obvious error. The defendant has the burden to show an
obvious error that affects his substantial rights, and we are not required to
exercise our discretion to notice obvious error when the defendant has not
raised an issue about obvious error on appeal. See, e.g., Dockter, 2019 ND
203, ¶ 9, 932 N.W.2d 98; State v. Rourke, 2017 ND 102, ¶ 8, 893 N.W.2d
176.

      Because Smith did not raise this issue before the district court and
failed to argue on appeal that the admission of the web browser history
evidence was obvious error, we will not address his argument.

                                      III

      Smith argues the district court erred by failing to give the jury an
instruction limiting the permissible use of the web browser history
evidence. He contends this case is similar to Aabrekke, 2011 ND 131, 800
N.W.2d 284, and his conviction must be reversed because a limiting
instruction was not given.

      In Aabrekke, 2011 ND 131, ¶ 2, 800 N.W.2d 284, the defendant moved
to exclude evidence of prior bad acts before trial, and the district court
denied the pretrial motion, ruling the evidence was admissible to show


                                       5
motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident. The defendant also objected to the testimony
during the trial, but this Court noted the record did not reflect that the
district court gave, or that either counsel requested, an instruction on the
limited use of the prior bad act evidence. Id. at ¶¶ 3, 15. We said the court
is required to conduct the necessary analysis under N.D.R.Ev. 404(b) and
403 and provide appropriate limiting instructions for the permissible
purpose for the prior bad acts evidence. Id. at ¶ 15. This Court explained
the evidence was offered for an allowable reason under N.D.R.Ev. 404(b),
but the district court did not conduct any further analysis under N.D.R.Ev.
404(b), do the required balancing under N.D.R.Ev. 403(b), or give a limiting
instruction. Id. We said, “Because of the dangers inherent in admitting
evidence of prior bad acts to show propensity and a district court’s obligation
to ensure a defendant receives a fair trial, the court should have given a
cautionary instruction during trial and in its final instructions.” Id. This
Court reversed the judgment and remanded for a new trial, holding the
district court misapplied the law by admitting evidence of prior bad acts
without conducting the necessary analysis under N.D.R.Ev. 404(b) and 403
and without giving an instruction on the limited purpose of the evidence.
Id. at ¶ 16.

       This case is different from Aabrekke. In Aabrekke, the defendant
argued the evidence was not admissible under N.D.R.Ev. 404 before the
district court, and we held the court failed to conduct the proper analysis
for admission of the evidence in addition to failing to give a cautionary
instruction. In this case, Smith did not object to the evidence or move to
exclude the evidence under N.D.R.Ev. 404, and neither party requested a
limiting or cautionary instruction. Although this Court said the district
court should have given a cautionary instruction even though neither
counsel requested an instruction, we did not reverse the judgment in
Aabrekke solely because the district court failed to give an instruction. See
Aabrekke, 2011 ND 131, ¶ 16, 800 N.W.2d 284. Smith has not cited any
cases in which this Court or any other court has reversed a judgment
because the district court did not give a limiting instruction sua sponte when
the defendant did not object or move to exclude the prior bad act evidence.

                                      6
Because the issue was never raised before the district court, the court was
not on notice that a limiting instruction may be necessary.

      Under the facts and circumstances of this case, the district court did
not err by failing to give a limiting instruction.

                                    IV

      We affirm the judgment.

      Jerod E. Tufte
      Daniel J. Crothers
      Lisa Fair McEvers
      Jon J. Jensen
      Gerald W. VandeWalle, C.J.




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