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,
. 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,
(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
1
