inline"> Filed 9/15/20 by Clerk of Supreme Court IN THE SUPREME COURT STATE OF NORTH DAKOTA 2020 ND 198


State of North Dakota,                                  Plaintiff and Appellee
      v.
Christian Dion Tolbert,                             Defendant and Appellant



                                No. 20200029

Appeal from the District Court of Grand Forks County, Northeast Central
Judicial District, the Honorable Jay D. Knudson, Judge.

AFFIRMED.

Per Curiam.

Andrew C. Eyre, Assistant State’s Attorney, Grand Forks, ND, for plaintiff and
appellee.

Benjamin C. Pulkrabek, Mandan, ND, for defendant and appellant.
                                State v. Tolbert
                                 No. 20200029

Per Curiam.

[¶1] Christian Tolbert appeals from a criminal judgment after a jury found
him guilty of continuous sexual abuse of a child and luring minors by computer.
Tolbert argues the district court obviously erred when it did not admit an
exhibit under N.D.R.Ev. 608 and instead excluded the exhibit as irrelevant
under N.D.R.Ev. 401 and inadmissible under N.D.R.Ev. 412. The exhibit
contained text messages of a sexual nature between the victim and an
unrelated third party. We conclude the district court did not abuse its
discretion excluding the exhibit under N.D.R.Ev. 401 and 412.

[¶2] 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

. We conclude Tolbert did not show it was error
for the district court not to admit the evidence on a basis not raised, and did
not commit obvious error because Tolbert has failed to establish the court
abused its discretion by not admitting the evidence under N.D.R.Ev. 608. State
v. Thompson,

2010 ND 10, ¶ 26

777 N.W.2d 617

 (when the defendant fails to
establish error, the court cannot commit obvious error). We summarily affirm
under N.D.R.App.P. 35.1(a)(4) and (7).

[¶3] Jon J. Jensen, C.J.
     Lisa Fair McEvers
     Gerald W. VandeWalle
     Jerod E. Tufte
     Daniel J. Crothers




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