The opinion cannot be considered final until disposition of such petition for rehearing by the court or expiration of 14 days from filing date.
Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Steven E. McCullough, Judge.
Gary E. Euren, Assistant State's Attorney, Fargo, ND, for plaintiff and appellee; submitted on brief.
Benjamin C. Pulkrabek, Mandan, ND, for defendant and appellant; submitted on brief.
[¶1] Jan David Hornor appeals from a criminal judgment entered after a jury found him guilty of manufacturing methamphetamine, possession of methamphetamine, possession of amphetamine, and possession of drug paraphernalia. Hornor argues it was obvious error for the district court not to provide an adverse-inference jury instruction regarding the State's failure to produce evidence showing Hornor's fingerprints were on the items of drug paraphernalia seized from his residence. To establish obvious error, the defendant must show there was: " (1) error; (2) that is plain; and (3) affects substantial rights." State v. Gresz, 2006 ND 135, ¶ 7, 717 N.W.2d 583 (emphasis added) (concluding when the defendant did not show there is evidence to support a self-defense claim, " we cannot say the failure to instruct the jury on self-defense was error, let alone obvious error." ). We conclude Hornor did not show it was error for the district court to not provide an unrequested adverse-inference instruction under the circumstances of this case, let alone establish that it amounted to obvious error. We summarily affirm under N.D.R.App.P. 35.1(a)(7).
Gerald W. VandeWalle, C.J., Lisa Fair McEvers, Carol Ronning Kapsner, Dale V. Sandstrom, ...