from the District Court of Burleigh County, South Central
Judicial District, the Honorable John W. Grinsteiner, Judge.
M. Vaagen, Assistant State's Attorney, Bismarck, N.D.,
for plaintiff and appellee.
J. Fischer, Bismarck, N.D., for defendant and appellant.
1] 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.
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.
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
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 ...