State v. Smith, 934 N.W.2d 1

Defendant Marquis Smith was charged with two counts of gross sexual imposition for alleged sexual contact with his girlfriend’s seven‑year‑old child in December 2017.
A cell phone recovered at arrest contained web browsing history with pages titled indicating incest‑themed pornography from December 2017; the State sought to admit that history and other alleged acts under N.D.R.Ev. 404(b).
Smith moved in limine to exclude the phone evidence under N.D.R.Ev. 401 and 403 (irrelevance and unfair prejudice); he did not file a written response to the State’s 404(b) notice or renew a 404 objection at trial.
The district court denied the motion, finding the browsing history relevant to state of mind, motive, intent, knowledge, and absence of mistake or accident, and that its probative value was not substantially outweighed by prejudice.
A jury convicted Smith on both counts. On appeal Smith argued (1) the browsing evidence was improper propensity evidence under Rule 404 and (2) the court erred by not giving a limiting instruction; the Supreme Court affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admission of web browsing history (404/401/403)	Evidence was relevant to intent, knowledge, absence of mistake, and the State gave 404(b) notice.	Browsing history was irrelevant to charged offenses and constituted impermissible propensity evidence; should be excluded under Rules 401 and 403 and Rule 404.	Smith failed to preserve a Rule 404 objection in district court; issue forfeited on appeal and not argued as obvious error, so Court did not review it.
Failure to give a limiting instruction for 404(b) evidence	Not directly argued by State; Smith argued a limiting instruction was required (relied on Aabrekke).	The court could have given one but neither party requested a limiting instruction; Smith never preserved the issue.	Aabrekke is distinguishable; because Smith did not raise the issue below, the court did not err in declining to give a limiting instruction sua sponte.

State v. Aabrekke, 800 N.W.2d 284 (N.D. 2011) (trial court must perform 404(b) and 403 analyses and give limiting instruction when admitting prior‑bad‑act evidence)
State v. Dockter, 932 N.W.2d 98 (N.D. 2019) (issues not raised in the trial court cannot be raised on appeal)
State v. Brewer, 893 N.W.2d 184 (N.D. 2017) (objections under Rules 403 and 404(b) must be made at trial or are waived)
State v. Morales, 932 N.W.2d 106 (N.D. 2019) (obvious‑error review requires showing plain error that affected substantial rights)
State v. Steen, 860 N.W.2d 470 (N.D. 2015) (a motion in limine does not substitute for a timely, specific objection at trial)