                Filed 1/23/20 by Clerk of Supreme Court

                  IN THE SUPREME COURT
                  STATE OF NORTH DAKOTA

                                2020 ND 15

State of North Dakota,                                  Plaintiff and Appellee


      v.


Jim Austin Wallitsch,                               Defendant and Appellant



                                No. 20190194

Appeal from the District Court of Cass County, East Central Judicial District,
the Honorable Steven L. Marquart, Judge.

AFFIRMED.

Opinion of the Court by Crothers, Justice.

Joshua J. Traiser (argued), Assistant State’s Attorney, and Brianna K. Kraft
(on brief), third-year law student, under the Rule on Limited Practice of Law
Students, Fargo, ND, for plaintiff and appellee.

Richard E. Edinger, Fargo, ND, for defendant and appellant.
                              State v. Wallitsch
                                No. 20190194

Crothers, Justice.

      Jim Wallitsch appeals from the amended judgment arguing the district
court erred by not giving an instruction regarding a statement made by a
potential juror during voir dire. We affirm.

      Wallitsch was charged with aggravated assault and tampering with
physical evidence. During voir dire potential jury members were asked if
anyone had a problem being a fair and impartial juror. One potential juror, a
Homeland Security agent, stated, “I’m fairly certain I’ve arrested your client
before.” The person was excused from the panel, the exchange was not
discussed further, and the jury subsequently found Wallitsch guilty on both
counts.

      On appeal Wallitsch argues the district court obviously erred and
reversal is required when, during voir dire, a Homeland Security agent said he
previously arrested the defendant and no curative instruction was given to the
venire or the jury.

                                        I

      “A failure to object will limit our inquiry on appeal to determining if the
alleged error constitutes obvious error affecting substantial rights.” State v.
Lang, 2015 ND 181, ¶ 18, 865 N.W.2d 401 (citing State v. Doppler, 2013 ND
54, ¶ 14, 828 N.W.2d 502). “We exercise our power to consider obvious error
cautiously and only in exceptional situations in which the defendant has
suffered a serious injustice.” Id. (citing State v. Hernandez, 2005 ND 214, ¶ 13,
707 N.W.2d 449). “We will not find obvious error unless an appellant meets the
burden of showing: (1) error, (2) that is plain, and (3) that affects substantial
rights.” Id. (citing State v. Doll, 2012 ND 32, ¶ 11, 812 N.W.2d 381). “An alleged
error does not constitute obvious error ‘unless there is a clear deviation from
an applicable legal rule under current law.’” State v. Patterson, 2014 ND 193,
¶ 4, 855 N.W.2d 113 (quoting State v. Olander, 1998 ND 50, ¶ 14, 575 N.W.2d
658). “Even if obvious error is established, ‘we will not exercise our discretion

                                        1
to correct the error unless it seriously affects the fairness, integrity, or public
reputation of judicial proceedings.’” Id. (citing State v. Roe, 2014 ND 104, ¶ 10,
846 N.W.2d 707) (quoting State v. Paul, 2009 ND 120, ¶ 11, 769 N.W.2d 416).

                                         II

       Wallitsch argues the error seriously affected the fairness and integrity
of the judicial proceedings. Wallitsch argues he was convicted based on the fact
that he was arrested by a Homeland Security agent and not the evidence in
this case. He further argues the presumption of innocence was gone after
potential jurors heard the comment from the Homeland Security agent. The
State argues Wallitsch did not establish the district court erred or that the
district court’s failure to give a curative instruction affected substantial rights.
We affirm.

       In State v. Lang, Lang argued the district court obviously erred in failing
to give a curative instruction to the jury to disregard the statement from a
prospective juror made during jury selection. The prospective juror was asked
if he had specific knowledge regarding domestic violence cases. He responded
“probably yes” and began to speak about why victims do not always stick to
their story. Lang objected and the potential juror was removed for cause. Lang,
2015 ND 181, ¶ 3, 865 N.W.2d 401. This Court held, “[b]ecause the district
court’s failure to instruct the jury to ignore the statements made during jury
selection does not appear to rise to the level of an exceptional situation in which
the defendant has suffered serious injustice or an unjust conviction, we
conclude the district court did not commit obvious error.” Id. at ¶ 19.

      This Court has not articulated a clear rule indicating when a district
court must instruct the jury to ignore statements made during voir dire. “An
alleged error does not constitute obvious error ‘unless there is a clear deviation
from an applicable legal rule under current law.’” State v. Patterson, 2014 ND
193, ¶ 4, 855 N.W.2d 113 (quoting State v. Olander, 1998 ND 50, ¶ 14, 575
N.W.2d 658). Therefore, even assuming it was error not to stop voir dire and
sua sponte provide a curative instruction, the district court did not commit
obvious error.



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      The district court did not obviously err by not providing a curative
instruction regarding the potential juror’s comments during voir dire. We
affirm the amended judgment.

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




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