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New Opinions: Dec. 5 Thursday, December 5, 2024

Lowe v. WSI 2024 ND 223
Docket No.: 20240189
Filing Date: 12/5/2024
Case Type: Appeal - Administrative - Workers Compensation
Author: Tufte, Jerod E.

Highlight: Workforce Safety and Insurance did not abuse its discretion by denying a request for approval of daily opioid medication in excess of 90 Morphine Milligram Equivalents. The district court judgment affirming WSI's managed care binding dispute resolution decision is affirmed.

State v. Johnson 2024 ND 222
Docket No.: 20240156
Filing Date: 12/5/2024
Case Type: Appeal - Criminal - Sexual Offense
Author: Crothers, Daniel John

Highlight: Under N.D.R.App.P. 28 a party is required to include legal authorities on which the party relies. During oral argument a party may not raise new claims or rely on legal authorities not contained in their brief.

A district court's substantial compliance with N.D.R.Crim.P. 11 is determined on the record as a whole.

An ineffective assistance of counsel claim generally should be brought in a postconviction relief proceeding.

Poseley v. Homer Township 2024 ND 221
Docket No.: 20240154
Filing Date: 12/5/2024
Case Type: Appeal - Administrative - Zoning
Author: Per Curiam

Highlight: An order dismissing an appeal from a local governing body's decision is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

State v. Graff 2024 ND 220
Docket No.: 20230409
Filing Date: 12/5/2024
Case Type: Appeal - Criminal - Sexual Offense
Author: Jensen, Jon J.

Highlight: An order dismissing the matter without prejudice following a finding of prosecutorial misconduct is affirmed.

Although the district court has some supervisory control over dismissals, the court should not dismiss a case with prejudice unless the court has had an opportunity to determine issues of bad faith, harassment, or misconduct, and this finding must be supported by clear and convincing evidence.

Generally, dismissal with prejudice is a remedy that should only be used in extreme circumstances.

State v. Thesing 2024 ND 219
Docket No.: 20240093
Filing Date: 12/5/2024
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Jensen, Jon J.

Highlight: Section 12.1-31.2-02, N.D.C.C., permits an individual to be charged for violating a pre-dispositional order when the alleged violation occurs while the individual is in custody.

A pre-dispositional order issued under N.D.C.C. § 12.1-31.2-02(1) differs from a condition of release issued under N.D.R.Crim.P. 46(a)(2)(E).

An argument not adequately articulated, supported, and briefed will not be considered by this Court.

State v. Grensteiner 2024 ND 218
Docket No.: 20240100
Filing Date: 12/5/2024
Case Type: Appeal - Criminal - Misc. Felony
Author: McEvers, Lisa K. Fair

Highlight: Probable cause for a driven vehicle extends to a towed vehicle.

Possession may be actual or constructive, exclusive or joint, and may be shown entirely by circumstantial evidence. To prove constructive possession the State must present evidence which establishes that the accused had the power and capability to exercise dominion and control over the contraband.

When there is a claim of prosecutorial misconduct, the Court determines whether the prosecutor's actions were misconduct and, if they were, whether the misconduct had prejudicial effect. Comments intended to highlight the weaknesses of a defendant's case do not shift the burden of proof. The Court presumes that the jury followed the district court's instructions.

State v. Grensteiner 2024 ND 218
Docket No.: 20240101
Filing Date: 12/5/2024
Case Type: Appeal - Criminal - Misc. Felony
Author: McEvers, Lisa K. Fair

Highlight: Probable cause for a driven vehicle extends to a towed vehicle.

Possession may be actual or constructive, exclusive or joint, and may be shown entirely by circumstantial evidence. To prove constructive possession the State must present evidence which establishes that the accused had the power and capability to exercise dominion and control over the contraband.

When there is a claim of prosecutorial misconduct, the Court determines whether the prosecutor's actions were misconduct and, if they were, whether the misconduct had prejudicial effect. Comments intended to highlight the weaknesses of a defendant's case do not shift the burden of proof. The Court presumes that the jury followed the district court's instructions.

State v. Gothberg 2024 ND 217
Docket No.: 20240138
Filing Date: 12/5/2024
Case Type: Appeal - Criminal - Misc. Felony
Author: McEvers, Lisa K. Fair

Highlight: Ordinarily in cases involving consent to enter a home, entry is preceded by an exchange between a police officer and an occupant in which the officer makes an inquiry and in response the occupant verbally or physically reacts in a manner that may be interpreted as consent. Absent verbal consent, the State must show affirmative conduct by the person alleged to have consented that is consistent with the giving of consent, rather than merely showing that the person took no affirmative actions to stop the police.

The existence of consent is a question of fact to be determined from the totality of the circumstances. The scope of an individual's consent is determined by considering what an objectively reasonable person would have understood the consent to include.

Whether consent was voluntarily given considers examination of the totality of the circumstances at the time it was given.

Factors that may be considered in determining the totality of the circumstances are the characteristics and condition of the accused at the time of consent and the details of the setting in which consent was obtained, though no one factor is determinative.