dissenting.
[¶ 22] Although I am persuaded by the majority that admission of the evidence of prior conviction under N.D.C.C. § 19-03.4-02 is subject to the balancing test of N.D.R.Ev. 403, I do not agree that this case should be reversed.
[¶ 23] As to the evidence of prior convictions, the defendant did not object on N.D.R.Ev. 403 grounds that the danger of unfair prejudice exceeded the probative value of the evidence. Had the defendant objected, the court would have done the balancing, and the evidence, the majority concedes, would have likely come in.
[¶ 24] The majority says, at ¶ 17, “However, the statutory language indicates that N.D.C.C. § 19-03.4-02 evidence will likely be admitted under the N.D.R.Ev. 403 balancing test, when a defendant is contesting whether an item is drug paraphernalia.” Schmeets pleaded not guilty. A not guilty plea puts the State to its proof on every element of the crime. N.D.C.C. § 29-16-01 (“An issue of fact arises ... [u]pon a plea of not guilty[.]”); N.D.C.C. § 12.1-01-03(1) (“No person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt.”). Schmeets had not stipulated that the items were drug paraphernalia.
[¶ 25] Defendants should have to state their objection. The rule that proper objections must be raised is - well-founded. N.D.R.Ev. 103(a)(1); Gonzalez v. Tounjian, 2003 ND 121, ¶ 31, 665 N.W.2d 705 (“Under Rule 103, one of the requirements for an effective appeal based upon erroneous admission of evidence is that the matter has been properly raised in the trial court so the court can intelligently rule on it.”). Courts should be required to do N.D.R.Ev. 403 balancing only when an appropriate objection is made.
*632[¶ 26] There should be no place in our law for a “Gotcha” for criminal defendants who can fail to object and then get one free trial if convicted.
[¶ 27] Similarly, defendants contending they did not receive notice required by N.D.R.Ev. 402 should be required to timely object to evidence on that basis. Once again, a defendant should not be able to let evidence come in without raising the appropriate objection and then claim a right to a free trial when raising the issue long after the fact.
[¶ 28] The majority applies the wrong standard in deciding to reverse. As we said in State v. Yineman, 2002 ND 145, ¶ 22, 651 N.W.2d 648 (emphasis added):
We have noted:
To establish obvious error under N.D.R.Crim.P. 52(b), the defendant has the burden to show (1) error, (2) that is plain, and (3) that affects substantial rights. We exercise our power to notice obvious error cautiously, and only in exceptional circumstances where the accused has suffered serious injustice. In determining whether there has been obvious error, we examine the entire record and the probable effect of the alleged error in light of all the evidence.
State v. Johnson, 2001 ND 184, ¶ 12, 636 N.W.2d 391 (citations omitted).
Instead, the majority says, at ¶ 1, that “because it is impossible to determine that the use of the evidence did not substantially affect Schmeets’ right to a fair trial, we reverse and remand for a new trial.” At ¶ 19, the majority cites a case predating the North Dakota Rules of Criminal Procedure, State v. Schlittenhardt, 147 N.W.2d 118 (N.D.1966), for the proposition: “Where, as in this case, reference to prior criminal acts is pervasive throughout the trial and much is offered without limiting instruction, it is impossible to hold as a matter of law such evidence had no effect on Schmeets’ substantial rights.” Schlit-tenhardt is inapposite, not just because it predates N.D.R.Crim.P. 52(b), but also because the evidence in question was inadmissible in any case, and the defendant immediately objected and moved for a mistrial.
[¶ 29] Here, Schmeets has not “suffered serious injustice.”
[¶ 30] I would affirm.
[¶ 31] Dale V. Sandstrom