IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2024 ND 6

State of North Dakota, Plaintiff and Appellee

v.

Ibrahim Salou, Defendant and Appellant

No. 20230196

Appeal from the District Court of Cass County, East Central Judicial District, 

the Honorable Tristan J. Van de Streek, Judge.

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.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

JANUARY 10, 2024 

STATE OF NORTH DAKOTA
1

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), 

N.D.R.Ev., evidence. He also argues insufficient evidence supports his

conviction. We affirm the judgment.

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

N.D.R.Ev. 404(b) describing digital evidence obtained from Salou’s phone

relating to his possession of controlled substances almost two months before 

the charged offense. When photographs and text messages from the phone 

were offered at trial, Salou’s counsel objected on grounds of relevance, arguing 

the evidence from the photographs was not connected to the charge because 

the almost two-month lapse in time from the messages to the charged offense 

was too remote. The court found the messages were admissible as relevant 

evidence and noted it did not consider the messages to be 404(b) evidence. The 

district court overruled the objection.

[¶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.” N.D.R.App.P. 28(b)(7)(B). In the 

statement of facts, the appellant’s brief mentions an objection overruled by the 
2

court, but without direct citation and in the context of describing a discussion 

on the record before opening statements where no evidence was offered and no 

objection was made.

[¶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. N.D.R.Ev. 103(a)(1)(A)-(B).

[¶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.
3

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 N.D.R.Ev. 404(b) was not 

preserved by an objection at trial, which forfeited that claim of error. See State 

v. Smith, 2019 ND 239, ¶ 14, 934 N.W.2d 1. We review the claims regarding 

relevance and unfair prejudice for abuse of discretion, but the Rule 404(b) 

claim is reviewable only for obvious error. Id.

[¶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.” N.D.R.Ev. 401 (emphasis added). Establishing 

relevance is not a substantial burden. See State v. Haugen, 448 N.W.2d 191, 

195 (N.D. 1989); State v. Naudain, 368 Or. 140, 149, 487 P.3d 32 (2021)

(describing relevance under Rule 401 as a “very low threshold”); Lee v. State, 

2003 WY 8, ¶ 9, 61 P.3d 1225 (emphasizing broad language of Rule 401 provides 

a “low threshold”). The exhibits make it more probable Salou was selling

marijuana, and the exhibits are of consequence because further testimony 

explained the exhibits show Salou was supposed to receive a pound of 

marijuana. The district court did not act arbitrarily, capriciously, or 

unreasonably, or misinterpret the law by concluding the photographs and text 

messages were relevant.

[¶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,” N.D.R.Ev. 404(b)(1), but after the court rejected that argument and 
4

determined it was directly relevant to the charged act, it was incumbent on 

him to object on the basis of Rule 404(b) or request a limiting instruction. He 

did not. We conclude the district court did not obviously err in these 

circumstances.

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 claimed possession of the 

backpack at the traffic stop. The packaging of the marijuana found in the 

backpack was similar in appearance to the marijuana shown in the photograph 

found on Salou’s phone. We conclude there was sufficient evidence for a jury to 

draw an inference reasonably tending to prove Salou was in possession of the 

backpack.
5

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