State v. Hornor, 20140367.

• Decision Date: 11 June 2015
• Docket Number: No. 20140367.,20140367.
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Jan David HORNOR, Defendant and Appellant.
• Court: North Dakota Supreme Court

865 N.W.2d 124 (Table)

STATE of North Dakota, Plaintiff and Appellee
v.
Jan David HORNOR, Defendant and Appellant.

No. 20140367.

Supreme Court of North Dakota.

June 11, 2015.

Gary E. Euren, Assistant State's Attorney, Fargo, ND, for plaintiff and appellee; submitted on brief.

Benjamin C. Pulkrabek, Mandan, ND, for defendant and appellant; submitted on brief.

Opinion

PER CURIAM.

[¶ 1] Jan David Hornor appeals from a criminal judgment entered after a jury found him guilty of manufacturing methamphetamine, possession of methamphetamine, possession of amphetamine, and possession of drug paraphernalia. Hornor argues it was obvious error for the district court not to provide an adverse-inference jury instruction regarding the State's failure to produce evidence showing Hornor's fingerprints were on the items of drug paraphernalia seized from his residence. 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 (emphasis added) (concluding when the defendant did not show there is evidence to support a self-defense claim, “we cannot say the failure to instruct the jury on self-defense was error, let alone obvious error.”). We conclude Hornor did not show it was error for the district court to not provide an unrequested adverse-inference instruction under the circumstances of this case, let alone establish that it amounted to obvious error. We summarily affirm under N.D.R.App.P. 35.1(a)(7).

[¶ 2] GERALD W. VANDE WALLE, C.J., LISA FAIR McEVERS, CAROL RONNING KAPSNER, DALE V. SANDSTROM, and DANIEL J. CROTHERS, JJ., concur.