State of North Dakota, Plaintiff and Appellee v. Ibrahim Salou, Defendant and Appellant
No. 20230196
IN THE SUPREME COURT STATE OF NORTH DAKOTA
JANUARY 10, 2024
2024 ND 6
FILED IN THE OFFICE OF THE CLERK OF SUPREME COURT JANUARY 10, 2024 STATE OF NORTH DAKOTA
AFFIRMED.
Opinion of the Court by Tufte, Justice.
Jason H. Van Horn, Assistant State‘s Attorney, Fargo, N.D., for plaintiff and appellee.
Samuel A. Gereszek, Grand Forks, N.D., for defendant and appellant.
State v. Salou
No. 20230196
Tufte, Justice.
[¶1] Ibrahim Salou appeals from a criminal judgment entered after a jury trial. He argues the district court erred by allowing improper Rule 404(b),
I
[¶2] Salou was charged with possession with intent to manufacture or deliver marijuana while in possession of a firearm, and unlawful possession of amphetamine. The State filed a notice of intent to present evidence under
[¶3] The jury convicted Salou of possession with intent to manufacture or deliver a controlled substance while in possession of a firearm, and possession of a controlled substance. Salou appeals.
II
[¶4] Salou argues the district court erred by admitting improper Rule 404(b) evidence. Our appellate rules require the appellant‘s brief to contain a concise statement of the applicable standard of review and a “citation to the record showing that the issue was preserved for review[] or a statement of grounds for seeking review of an issue not preserved.”
[¶5] “One of the touchstones for an effective appeal on any proper issue is that the matter was appropriately raised in the trial court so it could intelligently rule on it.” State v. Thomas, 2019 ND 194, ¶ 9, 931 N.W.2d 192 (quoting Lemer v. Campbell, 1999 ND 223, ¶ 16, 602 N.W.2d 686). If a party wishes to preserve a claim of error as it relates to the admissibility of evidence, it must, on the record, object or move to strike the evidence and state a specific ground for exclusion.
[¶6] At trial, Salou objected to the relevance of the photographs and text messages, arguing they occurred outside the relevant time frame and the State had shown no connection to the charges. Salou also argued one exhibit was “more prejudicial than it is probative.” The district court considered the evidence and found Rule 404(b) did not apply. Next, the court considered whether the evidence was relevant and concluded that the offered exhibits showed Salou was distributing marijuana, and further found the time lapse was not a strong enough reason to exclude the evidence, because Salou could have held onto the marijuana for a couple of months, making the evidence relevant. Further, the court found the exhibits were not more prejudicial than probative without additional explanation how the message implicated Salou and marijuana.
[¶7] The standard of review for preserved evidentiary rulings is well established:
This Court reviews a district court‘s evidentiary ruling under an abuse of discretion standard. A district court has broad discretion on evidentiary matters, and we will not overturn its admission or exclusion of evidence on appeal unless that discretion has been abused. A district court abuses its discretion when it acts arbitrarily, capriciously, or unreasonably, or when its decision is not the product of a rational mental process or if it misinterprets or misapplies the law.
State v. Yousif, 2022 ND 234, ¶ 5, 982 N.W.2d 870 (internal citations omitted).
[¶8] Here, Salou‘s objection preserved claims of error to relevance and unfair prejudice. Whether the evidence was improper under
[¶9] “A district court has broad discretion in admitting or excluding evidence at trial.” State v. Thomas, 2022 ND 126, ¶ 10, 975 N.W.2d 562. “Evidence is relevant if [] it has any tendency to make a fact more or less probable than it would be without the evidence.”
[¶10] Salou argues the district court obviously erred by failing to conduct the three-step analysis our cases require for determining the admissibility of evidence over a Rule 404(b) objection. Salou made no Rule 404(b) objection when the evidence was offered. The court reasoned that the photograph found on Salou‘s phone taken “a month or two months” earlier showing several bags of marijuana was direct evidence of the charged crime because “a person could hold onto marijuana for a couple months.” Salou objected only on grounds of relevance and unfair prejudice, and not under Rule 404(b). He did not request a limiting instruction. His relevance argument suggests the photographs and text messages must be viewed only as “[e]vidence of any other crime, wrong, or act,”
III
[11] Salou also argues the evidence was insufficient to support his conviction.
[¶12] This Court‘s standard for reviewing a sufficiency-of-the-evidence challenge is well established:
When the sufficiency of evidence to support a criminal conviction is challenged, this Court merely reviews the record to determine if there is competent evidence allowing the jury to draw an inference reasonably tending to prove guilt and fairly warranting a conviction. The defendant bears the burden of showing the evidence reveals no reasonable inference of guilt when viewed in the light most favorable to the verdict. When considering insufficiency of the evidence, we will not reweigh conflicting evidence or judge the credibility of witnesses. . . . A jury may find a defendant guilty even though evidence exists which, if believed, could lead to a verdict of not guilty.
State v. Noble, 2023 ND 119, ¶ 4, 992 N.W.2d 518 (quoting State v. Dahl, 2022 ND 212, ¶ 5, 982 N.W.2d 580).
[¶13] Salou does not contest that he was in possession of a firearm when he was arrested. He argues he did not have possession of the backpack and was not aware of its contents. Salou was a passenger in a car during a traffic stop. The evidence indicated the backpack was located at his feet, where he could reach and control it. Neither he nor the driver
IV
[¶14] The criminal judgment is affirmed.
[¶15] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr