State v. Buchholz
, 2006 ND 227,
723 N.W.2d 534
A mistake of law defense generally is not an available defense for strict liability offenses.
A sentence may be illegal if it is contrary to statute, fails to comply with a promise of a plea bargain, or is inconsistent with the oral pronouncement of the sentence.
State v. Gresz
, 2006 ND 135,
717 N.W.2d 583
In the absence of physical action upon another person, the failure to include a self-defense jury instruction on a charge of disorderly conduct is not obvious error.
State v. Smith
, 2006 ND 53,
711 N.W.2d 606
Convictions of attempted kidnapping, aggravated assault, and terrorizing are summarily affirmed under N.D.R.App.P. 35.1(a)(3).
State v. Feist
, 2006 ND 52,
711 N.W.2d 606
A district court order denying the defendant's motion to withdraw his guilty plea is affirmed under N.D.R.App.P. 35.1(a)(4) and (7).
State v. Buchholz
, 2005 ND 30,
692 N.W.2d 105
Statutory construction is a question of law, fully reviewable on appeal. Statutes are not interpreted in a manner that would render part of the statute mere surplusage.
Mistake of law is an affirmative defense that must be proved by a preponderance of the evidence at trial. It cannot be used to overcome a charged offense at a preliminary hearing.
State v. Mooney
, 2005 ND 6,
694 N.W.2d 22
Three criminal judgments are summarily affirmed under N.D.R.App.P. 35.1(a)(4).
State v. Ehli
, 2004 ND 125,
681 N.W.2d 808
A probation condition prohibiting a sex offender from having contact with his minor children is not a de facto termination of parental rights.
State v. Norman
, 2003 ND 66,
660 N.W.2d 549
The DNA database sampling requirements in N.D.C.C. 31-13-03 apply (1) to persons convicted after July 31, 2001, of a listed felony offense; and (2) to persons incarcerated after July 31, 2001, as a result of a conviction for one of the listed
offenses.
Only issues which have been thoroughly briefed and argued will be addressed on appeal.
Obtaining a DNA sample under N.D.C.C. 31-13-03 does not violate a person's Fifth Amendment right against self-incrimination.
State v. Leppert
, 2003 ND 15,
656 N.W.2d 718
The 2001 amendments to N.D.C.C. 31-13-03 authorize DNA testing of persons convicted of nonsexual felonies and establish a DNA data base for the test results of persons convicted of those offenses.
DNA testing for persons convicted of enumerated violent, nonsexual felonies is rationally related to a legitimate purpose and does not violate equal protection.
State v. Bingaman
, 2002 ND 210,
655 N.W.2d 57
In determining whether to order restitution, a court may take into account the defendant's ability to pay the restitution amount.
State v. Mohamed
, 2002 ND 198,
655 N.W.2d 84
Conviction of child abuse and neglect is summarily affirmed under N.D.R.App.P. 35.1(a)(3).
State v. Aune
, 2002 ND 176,
653 N.W.2d 53
A trial court may order a condition of probation requiring the probationer to stay away from a specific place.
State v. Yineman
, 2002 ND 145,
651 N.W.2d 648
To challenge a conviction based on the weight of the evidence, a defendant must make an appropriate motion to adequately preserve the issue for appeal.
To preserve the issue of sufficiency of the evidence for review, a defendant in a criminal jury trial must move for a judgment of acquittal under N.D.R.Crim.P. 29, although no motion for a judgment of acquittal is necessary in a bench trial.
State v. Berger
, 2002 ND 143,
651 N.W.2d 639
The beginning date of a probationary term is determined by the intent of the sentencing court as expressed in the language that created the probationary status.
A condition of probation capable of more than one construction is to be construed in favor of the offender.
State v. Aune
, 2001 ND 106,
629 N.W.2d 585
The trial court's judgment of conviction for a violation of N.D.C.C. 12.1-10-05 is affirmed under N.D.R.App.P. 35.1(a)(1).
State v. Rue
, 2001 ND 92,
626 N.W.2d 681
Arrests for probation violations may be made by court order or on probable cause.
A probation violator, detained on a court order of apprehension for probation violations, is detained "pursuant to" conviction of an offense, and escape from such detention is a felony offense.
Due process requires the State to prove, beyond a reasonable doubt, every element of an offense.
State v. Steen
, 2000 ND 152,
615 N.W.2d 555
Special verdicts or interrogatories in criminal cases are disfavored.
Evidence of intoxication is relevant in a negligent homicide case if it is indicative of a defendant's condition at a relevant time.
The trial court, rather than the jury, has the duty of deciding for sentencing purposes whether a negligent homicide conviction is based in part on evidence of the defendant's operation of a motor vehicle while under the influence of alcohol.
The trial court must prepare a written record of its findings on controverted statements in a presentence investigation report, or state its decision to not take the matter controverted into account when imposing sentence, and attach it to the
presentence investigation report.
State v. Krall
, 2000 ND 128,
617 N.W.2d 131
Counterfeiting conviction entered upon a guilty plea summarily affirmed under N.D.R.App.P. 35.1(a)(2).
State v. Marshall
, 1999 ND 242,
603 N.W.2d 878
Under N.D.C.C. 12.1-32-09(1) (1993), a "persistent offender" qualifies as a "dangerous special offender" eligible for imposition of an extended sentence.
A judgment and commitment should accurately reflect the proceedings.
Under N.D.R.Crim.P. 36, a court, at any time, may correct a clerical error in a judgment and commitment due to oversight.
State v. Hafner
, 1998 ND 220,
587 N.W.2d 177
Under N.D.C.C. 42-01-15, the phrase "the punishment for which is not otherwise prescribed" is not an element of the offense of maintaining or committing a public nuisance.
The agricultural operation defense to maintaining or committing a public nuisance under N.D.C.C. 42-04-02 is inapplicable "when a nuisance results from the negligent or improper operation of any such agricultural operation."
State v. Vondal
, 1998 ND 188,
585 N.W.2d 129
Failure to receive a copy of conditions of probation
reimposed upon a Rule 35, N.D.R.Crim.P., reduction of
sentence will not invalidate a subsequent revocation of
probation for violations of certain conditions if the
defendant had prior actual and clear notice of the
conditions.
The State v. Lewis doctrine regarding court-appointed
counsel is still the proper procedure in North Dakota
when counsel believes an appeal to be without merit.
State v. Bender
, 1998 ND 72,
576 N.W.2d 210
When a defendant is sentenced to probation following a term of
imprisonment, the court may order the defendant to participate in
treatment or counseling programs while in prison as a prior
condition of probation.
When the defendant violates the terms of his probation while
still incarcerated, the court may revoke probation at that time
and need not wait until the defendant is actually released on
probation.
Where an application for post-conviction relief alleging
ineffective assistance of counsel was not patently frivolous, the
trial court erred in summarily denying the application without a
responsive pleading or motion by the State, and without affording
the applicant an opportunity to provide evidentiary support for
his allegations.
State v. McMorrow
, 1998 ND 28,
576 N.W.2d 524
District court's findings and order affirmed under N.D.R.App.P.
35.1(a)(2) and (4).
State v. Johnson
, 1997 ND 235,
571 N.W.2d 372
Defendant's second attempt to correct sentence on same contention
raised earlier is misuse of process.
State v. Owens
, 1997 ND 212,
570 N.W.2d 217
An order denying criminal defendant's motion for return of bond
is appealable under NDCC 29-28-06(5), as it affects a substantial
right. The trial court erred in denying the defendant's motion
where an unrebutted prima facie case for return of the bond was
presented, even though the money had been erroneously paid out by
the clerk of court to the defendant's estranged wife.
State v. Carlson
, 1997 ND 7,
559 N.W.2d 802
The trial court's instructions adequately advised the jury on the
crime of terrorizing, and the court did not err in refusing to
give the defendant's requested instruction on "transitory anger."
The trial court did not err in refusing to instruct the jury that
disorderly conduct was a lesser included offense of terrorizing.
The trial court did not abuse its discretion in allowing a
prosecution witness to testify that the defendant's friend asked
a third party a lewd and soliciting question; in postponing a
ruling on the admissibility of the defendant's "un-Mirandized"
statement; and in limiting the scope of testimony by a
physician's assistant, who was offered as an expert on "all
medical issues."
The State's improper "golden rule" argument was not reversible
error.
The evidence was sufficient to support a terrorizing conviction.
State v. Shepherd
,
554 N.W.2d 821 (N.D. 1996)
The trial court did not abuse its discretion in
requiring, as a condition of probation, that the defendant
complete a sex offender treatment program reasonably related to
the crime committed.
State v. Olson
,
552 N.W.2d 362 (N.D. 1996)
Although the defendant did not directly communicate
threats to the victim, there was sufficient circumstantial
evidence to support a guilty verdict for terrorizing, because
the jury could have reasonably decided the defendant
recklessly disregarded the risk his threats would be
communicated to the victim
State v. Winkler
,
552 N.W.2d 347 (N.D. 1996)
Law enforcement officers did not conduct a
warrantless search by entering defendant's property via his
driveway and observing defendant's pickup from outside his
open garage. However, the officers' entry into defendant's
open garage without a warrant constituted an unlawful
search. A later-obtained search warrant was supported by
probable cause derived from sources independent of the
officers' unlawful entry into the defendant's garage.
However, remand was necessary for a determination whether the
officers' decision to seek the warrant was caused by what
they saw during the unlawful entry. Statements
voluntarily made by the defendant prior to his arrest were
not required to be suppressed. The trial court did not
abuse its discretion by denying a motion to exclude the
results of an Intoxilyzer test in the prosecution for
negligent homicide.
State v. Keller
,
550 N.W.2d 411 (N.D. 1996)
There was sufficient evidence to support the jury's verdict
finding the defendant guilty of stalking.
City of Grand Forks v. Dohman
,
552 N.W.2d 66 (N.D. 1996)
In a criminal trial, a defendant must move for a judgment of
acquittal under Rule 29, N.D.R.Crim.P., to preserve the issue
of sufficiency of the evidence to support a jury verdict.
State v. Touche
,
549 N.W.2d 193 (N.D. 1996)
State v. Carriere
,
545 N.W.2d 773 (N.D. 1996)
State v. Hendrick
,
543 N.W.2d 217 (N.D. 1996)
State v. Rieger
,
544 N.W.2d 176 (N.D. 1996)
State v. Erickson
,
534 N.W.2d 804 (N.D. 1995)
State v. Dalman
,
520 N.W.2d 860 (N.D. 1994)
State v. Wolff
,
512 N.W.2d 670 (N.D. 1994)
State v. Johnson
,
510 N.W.2d 637 (N.D. 1994)
State v. Franck
,
499 N.W.2d 108 (N.D. 1993)
State v. Franck
,
495 N.W.2d 60 (N.D. 1993)
State v. McNair
,
491 N.W.2d 397 (N.D. 1992)
State v. Smokey's Steakhouse, Inc.
,
478 N.W.2d 361 (N.D. 1991)
State v. Haugen
,
392 N.W.2d 799 (N.D. 1986)
State v. Lang
,
378 N.W.2d 205 (N.D. 1985)
State v. Patten
,
366 N.W.2d 459 (N.D. 1985)
State v. Olson
,
356 N.W.2d 110 (N.D. 1984)
State v. Patten
,
353 N.W.2d 30 (N.D. 1984)
State v. Kolobakken
,
347 N.W.2d 569 (N.D. 1984)
State v. Larson
,
343 N.W.2d 361 (N.D. 1984)
State v. Turnovec
,
341 N.W.2d 615 (N.D. 1983)
State v. Jenkins
,
339 N.W.2d 567 (N.D. 1983)
State v. Wingerter
,
334 N.W.2d 475 (N.D. 1983)
Matz v. Satran
,
313 N.W.2d 740 (N.D. 1981)
State v. Howe
,
308 N.W.2d 743 (N.D. 1981)
State v. Anderson
,
303 N.W.2d 98 (N.D. 1981)
State v. Hanson
,
302 N.W.2d 399 (N.D. 1981)
State v. Lewis
,
291 N.W.2d 735 (N.D. 1980)
State v. La Fontaine
,
293 N.W.2d 426 (N.D. 1980)
State v. Engel
,
284 N.W.2d 303 (N.D. 1979)
State v. Jensen
,
265 N.W.2d 691 (N.D. 1978)
State v. Spiekermeier
,
256 N.W.2d 877 (N.D. 1977)
State v. Howe
,
247 N.W.2d 647 (N.D. 1976)
City of Jamestown v. Rolfzen
,
238 N.W.2d 661 (N.D. 1976)
Morris v. McGee
,
180 N.W.2d 659 (N.D. 1970)
State v. Weigel
,
165 N.W.2d 695 (N.D. 1969)
State v. Higgins
,
145 N.W.2d 478 (N.D. 1966)
State v. Gamble Skogmo, Inc.
,
144 N.W.2d 749 (N.D. 1966)