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State v. Smith

Supreme Court of North Dakota

October 3, 2019

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

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

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

          Steven J. Fischer, Bismarck, N.D., for defendant and appellant.

          OPINION

          TUFTE, JUSTICE.

         [¶ 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.

         I

         [¶2] 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.

         [¶3] 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.

         [¶4] 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.

         [¶5] 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.

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

         II

         [¶7] 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).

         [¶8] 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 ...


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