Smith v. State: No Per Se Strickland Prejudice from 404(b) Errors; Contextual Prejudice Analysis and Record Supplementation Required

Introduction

In Smith v. State, 2025 ND 189 (N.D. Nov. 5, 2025), the North Dakota Supreme Court addressed a postconviction claim of ineffective assistance of counsel stemming from the admission of other-acts evidence under N.D.R.Ev. 404(b). The case arises from Marquis Smith’s 2018 convictions for gross sexual imposition involving his girlfriend’s seven-year-old child. On direct appeal, the Court affirmed, noting Smith’s trial counsel had not preserved objections to the State’s evidence of Smith’s pornographic website searches related to incest.

In postconviction proceedings, the district court granted relief, finding counsel constitutionally deficient for failing to properly object to the Rule 404(b) evidence, failing to request a limiting instruction, and failing to argue obvious error on appeal. The State appealed. Writing for a unanimous Court, Chief Justice Jensen affirmed the deficiency finding but reversed on prejudice, clarifying that:

The inherent prejudicial nature of 404(b) evidence does not create a per se showing of prejudice under Strickland’s second prong.
Prejudice must be assessed in the context of all properly admitted evidence and the overall conduct of the trial.
Where important evidence (here, a child forensic interview video) may be available despite presumed destruction under retention rules, the record should be supplemented before conducting the prejudice analysis.

The Supreme Court remanded with instructions to supplement the record, if possible, and to conduct a full Strickland prejudice assessment, also directing the district court to address all grounds raised in Smith’s application for postconviction relief.

Summary of the Opinion

Deficient performance (Strickland prong one): Affirmed. The cumulative failures of Smith’s trial counsel—failing to properly litigate Rule 404(b) pretrial, not objecting at trial, not requesting a limiting instruction, and not developing an obvious error argument on appeal—fell below an objective standard of reasonableness, particularly in light of Brewer v. State.
Prejudice (Strickland prong two): Reversed and remanded. The district court’s prejudice analysis was inadequate because it did not measure the effect of counsel’s errors against the totality of the properly admitted evidence and the overall conduct of the trial. The Supreme Court rejected any per se presumption of Strickland prejudice based on the inherent prejudice of 404(b) evidence.
Record supplementation: Remanded with instructions. Because the child’s forensic interview video may still exist despite presumed destruction under N.D.R.Ct. 6.4, the district court should attempt to supplement the record. The Uniform Postconviction Procedure Act supports introducing additional evidence or reconstructing a record when necessary to fairly evaluate claims.
Scope on remand: The district court must address all grounds raised in Smith’s postconviction application, not only the 404(b)-related claim.

Analysis

Precedents Cited and Their Influence

Strickland v. Washington, 466 U.S. 668 (1984):
The governing framework. An applicant must establish (1) deficient performance falling below an objective standard of reasonableness, and (2) prejudice—a reasonable probability that, but for counsel’s errors, the result would have been different. The Court emphasizes that prejudice must be evaluated against the entire trial record.
Brewer v. State, 2019 ND 69, 924 N.W.2d 87:
Brewer held that failing to object at trial on Rule 404(b) grounds—even after losing a pretrial motion in limine—is a basic legal error that satisfies Strickland’s deficiency prong. Smith extends Brewer by addressing a broader set of omissions: no written response to the State’s 404(b) notice, no trial objection, no limiting instruction request, and no obvious error argument on appeal. Smith relies on Brewer to affirm deficiency here and reiterates the judiciary’s long-standing insistence on a proper Rule 404(b) analysis.
Thomas v. State, 2021 ND 173, 964 N.W.2d 739; Middleton v. State, 2014 ND 144, 849 N.W.2d 196:
Standards of review. Ineffective assistance is a mixed question of law and fact; factual findings are reviewed for clear error. The Court tracks these standards to affirm the deficiency finding.
State v. Osier, 1997 ND 170, 569 N.W.2d 441; State v. Shaw, 2016 ND 171, 883 N.W.2d 889:
Both cases recognize the “inherent prejudicial effect” of prior bad-acts evidence under Rule 404(b). Smith clarifies that these statements justify rigorous Rule 404(b) gatekeeping and Rule 403 balancing but do not create a per se presumption of Strickland prejudice in postconviction analysis.
State v. Van Halsey, 2022 ND 31, 970 N.W.2d 227:
Even if a district court fails to make a proper record of the 404(b) three-step analysis and Rule 403 balancing, the error can be harmless if independent evidence supports conviction. Smith leverages Van Halsey to hold that Strickland prejudice cannot be assumed merely because 404(b) evidence is inherently prejudicial; the entire record must be assessed.
Overlie v. State, 2011 ND 191, 804 N.W.2d 50; State v. Frederick, 2023 ND 77, 989 N.W.2d 504:
These decisions support introducing additional evidence and reconstructing or supplementing the record in postconviction proceedings when necessary to evaluate claims. Smith uses these authorities to direct supplementation of the trial record with the child forensic interview video, if available, before deciding Strickland prejudice.
State v. Smith, 2019 ND 239, 934 N.W.2d 1:
The direct appeal in this case. The Court previously held the Rule 404(b) challenge was forfeited by failure to object (and declined obvious error review due to an undeveloped argument). Those preservation failures now form part of the deficiency finding in the postconviction case.

Legal Reasoning

1) Deficient Performance Under Strickland

The Court found no clear error in the district court’s conclusion that counsel’s performance fell below an objective standard of reasonableness. Counsel: (a) failed to file a written response to the State’s Rule 404(b) notice after being told the issue would be addressed upon such a filing; (b) failed to object when the State introduced the pornographic website search evidence at trial; (c) failed to request a limiting instruction; and (d) failed on direct appeal to develop an obvious error argument. These cumulative failures prevented both the trial court and the Supreme Court from conducting the full Rule 404(b) analysis that North Dakota decisions have repeatedly emphasized must be performed. Building on Brewer, the Court deemed these omissions a “basic legal error” satisfying Strickland’s first prong.

2) No Per Se Strickland Prejudice from 404(b) Evidence

The district court’s prejudice analysis was too cursory. It invoked Brewer and the inherent prejudice of 404(b) evidence but did not analyze how counsel’s failures may have altered the outcome when measured against:

The evidence otherwise properly admitted at trial; and
The overall conduct of the entirety of the proceedings.

The Supreme Court emphasized the doctrinal distinction:

Rule 404(b)/Rule 403 prejudice focuses on evidentiary admissibility and the risk of unfair prejudice substantially outweighing probative value.
Strickland prejudice asks whether there is a reasonable probability of a different outcome but for counsel’s errors, assessed in the context of the full record and trial dynamics.

Accordingly, the Court rejected any per se rule that the admission of inherently prejudicial 404(b) evidence automatically establishes Strickland prejudice. Instead, courts must “consider the probability of a different result in light of the evidence presented and the overall conduct of the entire trial before and after the claimed error.”

3) Remand to Supplement the Record and Conduct a Full Prejudice Analysis

The Court noted that the child’s forensic interview video—an important evidence piece—was reportedly destroyed pursuant to N.D.R.Ct. 6.4, but that it may still be available. Because Strickland prejudice hinges on the full evidentiary picture, the Court remanded with instructions to:

Supplement the record with the forensic interview video if possible, or otherwise reconstruct the record, consistent with the Uniform Postconviction Procedure Act and the Court’s decisions in Overlie and Frederick; and
Only then conduct the Strickland prejudice assessment, addressing how the absence of the 404(b) evidence (and the absence of a limiting instruction) would interact with the totality of the State’s case.

The Court also instructed the district court to address all grounds raised in Smith’s application, not just the 404(b)-related claim.

Impact and Practical Implications

A. For Postconviction Courts

Show-your-work requirement: Strickland prejudice demands a reasoned, record-grounded analysis of the entire trial. Conclusory statements invoking the “inherent prejudice” of 404(b) evidence are insufficient.
Record augmentation: When key evidence may have been destroyed or is missing, courts should attempt supplementation or reconstruction before deciding prejudice.

B. For Trial Counsel

Litigate 404(b) thoroughly: File written responses to Rule 404(b) notices, request the court’s on-the-record three-step 404(b) analysis and Rule 403 balancing, and seek a limiting instruction.
Preserve at trial: Renew objections even if a motion in limine is denied; do not rely solely on pretrial rulings.
Appellate preservation: If objections are forfeited, consider and develop an obvious error argument where appropriate.

C. For Prosecutors

Make a complete 404(b) record: Identify the specific non-propensity purpose, articulate the logical chain of relevance, and invite a limiting instruction.
Case strategy: Use 404(b) evidence sparingly and deliberately. The Court’s reminder that such evidence is inherently prejudicial underscores the risk of reversal or postconviction relief if the record is thin on admissibility.

D. For Trial Courts

On-the-record analysis: When 404(b) evidence is admitted, make the three-step 404(b) analysis and separate Rule 403 balancing explicit on the record. Although objections trigger the inquiry, a clear record protects the verdict and aids appellate review.
Limiting instructions: Provide them upon request when admitting 404(b) evidence to mitigate unfair prejudice and preserve clarity for the jury.

E. On Evidence Preservation

Retention awareness: Sensitive evidence like child forensic interviews may be subject to retention schedules (e.g., N.D.R.Ct. 6.4). Parties and courts should anticipate postconviction timelines and preserve or document how such evidence can be accessed or reconstructed if litigation is ongoing.

Complex Concepts Simplified

Rule 404(b): Generally bars evidence of a person’s other acts to prove propensity (i.e., “once a wrongdoer, always a wrongdoer”), but allows such evidence for specific, non-propensity purposes (e.g., motive, intent, identity), subject to strict safeguards.
Rule 403: Even admissible evidence can be excluded if its probative value is substantially outweighed by risks such as unfair prejudice, confusion, or misleading the jury.
Three-step 404(b) analysis: North Dakota decisions require courts to (a) identify a proper non-propensity purpose; (b) explain how the evidence is relevant to that purpose; and (c) ensure the required procedural safeguards are met—followed by separate Rule 403 balancing. Courts often also give a limiting instruction to guide the jury’s use of the evidence.
Strickland deficiency: Lawyer performance falls below an objective standard of reasonableness (e.g., missing required objections, neglecting limiting instructions, or failing to brief obvious error on appeal).
Strickland prejudice: There is a reasonable probability that, but for counsel’s errors, the result would have been different. This is measured against the totality of the evidence and the overall trial—not in isolation.
Obvious error (plain error): An appellate doctrine allowing review of unpreserved errors that are clear and affect substantial rights. Failure to develop an obvious error argument can foreclose appellate relief.
Record supplementation/reconstruction: In postconviction proceedings, courts may add evidence to the record or reconstruct missing portions to fairly assess claims that depend on the full evidentiary context.

What Remains for the District Court on Remand

Attempt to obtain or reconstruct the child’s forensic interview video.
Evaluate prejudice by considering the likely impact of excluding the 404(b) website-search evidence and the absence of a limiting instruction, weighed against:
- The child’s trial testimony and her identification of the event’s circumstances;
- The mother’s and babysitter’s testimony about the child’s early disclosure;
- Smith’s pre-disclosure contact with the mother and his statements characterized as inconsistent or as a “partial confession”;
- Evidence impeaching Smith’s credibility (e.g., deleted bathing videos); and
- The fact that the 404(b) proof spanned less than two transcript pages and was not referenced in closing argument.
Address all additional grounds for relief that Smith raised, applying Strickland’s two-prong test to each where relevant.

Conclusion

Smith v. State clarifies two critical points in North Dakota postconviction practice. First, while prior bad-acts evidence admitted under Rule 404(b) carries inherent risks of unfair prejudice necessitating rigorous admissibility analysis, its admission does not automatically establish prejudice for purposes of Strickland. Postconviction courts must conduct a contextual, record-based assessment that weighs counsel’s missteps against the entirety of the properly admitted evidence and the overall conduct of the trial. Second, when essential pieces of evidence may still be available—or can be reconstructed despite presumed destruction—courts should supplement the record before adjudicating Strickland prejudice.

The decision underscores robust preservation and procedural rigor from counsel, careful on-the-record Rule 404(b) and Rule 403 analysis by trial courts, and disciplined, evidence-based prejudice determinations by postconviction courts. In doing so, Smith strengthens the integrity of both trial proceedings and postconviction review in North Dakota.