Opinions

State v. Costa 2016 ND 65
Docket No.: 20150248
Filing Date: 3/15/2016
Case Type: Appeal - Criminal - Sexual Offense
Author: McEvers, Lisa K. Fair

Highlight: Counsel may not comment on facts not in evidence during closing argument, and a prosecutor may not vouch for evidence during closing argument.

Cudmore v. N.D. Dep't of Transportation 2016 ND 64
Docket No.: 20150282
Filing Date: 3/15/2016
Case Type: Appeal - Administrative - Department of Transportation
Author: McEvers, Lisa K. Fair

Highlight: Before deciding whether to submit to chemical testing, an individual has a qualified statutory right to consult with an attorney.
If a DUI arrestee who has been asked to take a chemical test makes any mention of a need for an attorney, the officer must assume the arrestee is requesting an opportunity to consult with an attorney and must allow a reasonable opportunity for the arrestee to do so.
If an arrestee makes only a passing reference to an attorney rather than mentioning a need for an attorney, an arrestee is not denied his limited statutory right to counsel prior to chemical testing.

State v. Keller 2016 ND 63
Docket No.: 20150132
Filing Date: 3/15/2016
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Crothers, Daniel John

Highlight: A district court does not abuse its discretion by refusing to give jury instructions that inadequately and inaccurately reflect the law.

Curtiss v. State (cross-ref. w/20150007) 2016 ND 62
Docket No.: 20150284
Filing Date: 3/15/2016
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Kapsner, Carol

Highlight: The applicant in a post-conviction relief case has the burden of establishing grounds for relief.
When deciding an application for post-conviction relief, the district court is not required to review the criminal trial transcript when the transcript has not been filed with the court.
Harmless error is error that does not affect the parties' substantial rights.

Degnan v. Degnan 2016 ND 61
Docket No.: 20150244
Filing Date: 3/15/2016
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: A district court does not abuse its discretion in granting spousal support and attorney's fee awards in amounts less than the requesting spouse's alleged need.
A district court does not abuse its discretion by denying a motion for a new trial when the facts and circumstances of the case do not display an unreasonable, arbitrary or unconscionable attitude.

Werven v. Werven 2016 ND 60
Docket No.: 20150201
Filing Date: 3/15/2016
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: Modification of spousal support is not warranted when the change in a party's financial circumstances is self-induced.
An inability to comply with a court order is a defense to contempt, but the alleged contemnor has the burden to establish the defense and show an inability to comply.

State v. Putney 2016 ND 59
Docket No.: 20150237
Filing Date: 3/15/2016
Case Type: Appeal - Criminal - Assault
Author: VandeWalle, Gerald

Highlight: A conviction rests upon insufficient evidence only when, after reviewing the evidence in the light most favorable to the prosecution, no rational fact finder could find the defendant guilty beyond a reasonable doubt.
A district court must deny a motion for judgment of acquittal if there is substantial evidence upon which a reasonable mind could find guilt beyond a reasonable doubt.
Courts are free to judicially notice municipal ordinances, and whether to take judicial notice of a municipal ordinance is within the district court's discretion.

City of Grand Forks v. Gale 2016 ND 58
Docket No.: 20150204
Filing Date: 3/15/2016
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Kapsner, Carol

Highlight: Delay attributable to an accused's purposeful evasion of prosecution may not result in a speedy trial violation, but the accused have no duty to bring themselves to trial.
The government risks dismissal on speedy trial grounds when it is not diligent in its prosecution.
For speedy trial analysis, whether prejudice caused by pretrial delay must be actual or may be presumed is dependent upon the government's diligence in prosecution.

Martire' v. Martire' (cross ref 20110253, 20110197) 2016 ND 57
Docket No.: 20150139
Filing Date: 3/15/2016
Case Type: Appeal - Civil - Child Support
Author: McEvers, Lisa K. Fair

Highlight: Even when it is undisputed an obligor's net monthly income exceeds the income maximum under the Child Support Guidelines, the district court must determine the obligor's net income before it determines the appropriate upward deviation from the presumptive guideline amount.
Mechanical use of multipliers in determining an upward deviation from the Child Support Guidelines is discouraged; there must be a balancing of the appropriate needs of the child against an amount of child support that would maintain the heightened level of support owed to a child given the high income of the obligor parent.
Imputing income is appropriate when an individual is underemployed.

Woody v. Pembina County Annual Fair and Exhibition Association 2016 ND 56
Docket No.: 20150236
Filing Date: 3/15/2016
Case Type: Appeal - Civil - Personal Injury
Author: Crothers, Daniel John

Highlight: Owner of land inviting the public to use its property for recreational purposes without charge is protected from liability under N.D.C.C. ch. 53-08.
Recreational use immunity applies when a person is injured after entering a public fairground to watch a free fireworks display.