Opinions

Fehl-Haber v. State (Cross Ref w/20060086) 2009 ND 128
Docket No.: 20090026
Filing Date: 7/9/2009
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: District court order denying application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Neva 2009 ND 127
Docket No.: 20090054
Filing Date: 7/9/2009
Case Type: Appeal - Criminal - Misc. Felony
Author: Sandstrom, Dale

Highlight: A defendant whose previous concurrent sentences are converted into consecutive sentences upon revocation of his probation is entitled to receive credit for the time he spent in custody only toward the first of the converted consecutive sentences.

Steinmeyer v. Department of Transportation 2009 ND 126
Docket No.: 20090096
Filing Date: 7/9/2009
Case Type: Appeal - Administrative - Department of Transportation
Author: Sandstrom, Dale

Highlight: Fair administration of an Intoxilyzer test may be established by proof that the method approved by the State Toxicologist for conducting the test has been scrupulously followed. However, 'scrupulous' compliance does not mean 'hypertechnical' compliance.
"Observing" an Intoxilyzer test subject is not the only manner of "ascertaining" that the subject had nothing to eat, drink, or smoke within the twenty minutes prior to the collection of the breath sample as required by the approved method.

City of Grand Forks v. Corman 2009 ND 125
Docket No.: 20080289
Filing Date: 7/9/2009
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Sandstrom, Dale

Highlight: In a transferred case from a municipal court to a district court, the municipal court retains the authority to consider a defendant's application for court-appointed counsel.
A district court denying a defendant's application for court-appointed counsel in a transferred case from a municipal court does not abuse its discretion in denying the application on the basis that it is not the proper forum.
A defendant who has been advised of his right to counsel and the perils of self-representation waives voluntarily, knowingly, and intelligently his right to counsel if he chooses to represent himself.

Bice, et al. v. Petro-Hunt, L.L.C., et al. (cross-reference w/20030306) 2009 ND 124
Docket No.: 20080265
Filing Date: 7/9/2009
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Crothers, Daniel John

Highlight: Where gas has no market value at the well and the lease requires royalty to be paid based upon the market value of the gas at the well, lessee can deduct post-production costs incurred in making the gas marketable prior to calculating the royalty.
The "at the well" rule in interpreting oil and gas leases is adopted, and the first marketable product doctrine is rejected.
The language of a contract is to govern its interpretation if the language is clear and explicit and does not involve an absurdity.
Normally, whether a risk-capital charge is commercially reasonable is a question of fact, but when the parties stipulate to the facts in the record and request that the court determine the issue according to the parties' motions for summary judgment, the court can decide the issue as a matter of law.
A party resisting summary judgment must present competent admissible evidence establishing a genuine issue of material fact and cannot simply rely upon the pleadings or unsupported, conclusory allegations.

State v. Maki 2009 ND 123
Docket No.: 20080279
Filing Date: 7/9/2009
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Crothers, Daniel John

Highlight: In reviewing a question of sufficiency of the evidence under N.D.R.Crim.P. 29(a), conflicts in the evidence are not resolved and the credibility of witnesses is not reweighed.
On appeal, the judgment is affirmed if there is evidence which could have allowed the jury to draw an inference reasonably tending to prove guilt and fairly warranting a conviction.
Jurors are presumed to know and apply the common and ordinary meaning of words.

Abernathey v. Department of Transportation 2009 ND 122
Docket No.: 20080336
Filing Date: 7/9/2009
Case Type: Appeal - Administrative - Department of Transportation
Author: Kapsner, Carol

Highlight: A law enforcement officer's approach to a parked vehicle is not a seizure if the officer inquires of the occupant in a conversational manner, does not order the person to do something, and does not demand a response.
An occupant of a vehicle has not been "seized" when a law enforcement officer requests, rather than orders or commands, that the occupant exit a vehicle.

Interest of B.K. and D.K. (CONFIDENTIAL) 2009 ND 121
Docket No.: 20090027
Filing Date: 7/9/2009
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: Order terminating parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

State v. Paul 2009 ND 120
Docket No.: 20080292
Filing Date: 7/9/2009
Case Type: Appeal - Criminal - Sexual Offense
Author: Maring, Mary

Highlight: The decision to admit expert testimony is discretionary with the district court.
A district court must make explicit findings and explain its reasoning for its decision when considering the trustworthiness of a child's out-of-court hearsay statements about sexual abuse.
Evidence of prior sexual abuse of a victim of the charged crime is not evidence of wholly separate and independent crimes, and is not evidence of "other crimes" for purposes of N.D.R.Ev. 404(b).
Uncharged prior acts of sexual abuse between the defendant and the same victim are admissible under the exceptions to N.D.R.Ev. 404(b).
The uncorroborated testimony of a child is sufficient to sustain a conviction of a sexual offense.

State v. Zajac 2009 ND 119
Docket No.: 20080203
Filing Date: 7/9/2009
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Maring, Mary

Highlight: Although a motion for new trial is not necessary for appellate review, when a new trial is sought, the party making the motion is limited on appeal on the grounds presented to the trial court in the motion for a new trial.
Jury instructions are reviewed as a whole to determine whether the instructions fairly and adequately informed the jury of the applicable law.
A defendant is entitled to a jury instruction on a defense if there is evidence that creates a reasonable doubt about an element of the charged offense. Whether there is sufficient evidence to support a jury instruction is viewed in the light most favorable to the defendant.
A defendant may be entitled to an excuse instruction if there is evidence presented at trial that the defendant has a reasonable but mistaken belief that any of the statutory grounds for justification are present.