Opinions

State v. Kordonowy 2015 ND 197
Docket No.: 20140327
Filing Date: 8/6/2015
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: McEvers, Lisa K. Fair

Highlight: The implied consent statute criminalizing refusal to consent to chemical testing is not unconstitutional under the Fourth Amendment or N.D. Constitution article I, section 8, and it is not unconstitutionally vague.
The statutory right to refuse to submit to chemical testing is not a defense to the charge of refusal to submit to a chemical test.
The district court does not have a duty to draft a jury instruction requested by the defendant.

State v. Kardor 2015 ND 196
Docket No.: 20140410
Filing Date: 8/6/2015
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Sandstrom, Dale

Highlight: A Brady v. Maryland violation is established if a defendant proves: (1) the government possessed evidence favorable to the defendant; (2) the defendant did not possess the evidence and could not have obtained it with reasonable diligence; (3) the prosecution suppressed the evidence; and (4) a reasonable probability exists that the outcome of the proceedings would have been different if the evidence had been disclosed.
A Brady violation is not established if a defendant was aware of the information allegedly withheld by the State.
A defendant's failure to discover evidence from a lack of reasonable diligence defeats a Brady claim that the prosecution withheld evidence.

Yesel, et al. v. Brandon, et al. (consolidated w/20140187) 2015 ND 195
Docket No.: 20140186
Filing Date: 8/6/2015
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Kapsner, Carol

Highlight: A royalty interest is not abandoned if the mineral interest related to the royalty interest has been used within the last 20 years.
On a party's motion for leave to amend a pleading to assert a counterclaim in an ongoing action, a district court must consider whether the counterclaim is compulsory or permissive, and also must consider whether justice requires that leave to amend be granted.

State v. Filkowski 2015 ND 194
Docket No.: 20140344
Filing Date: 8/6/2015
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: VandeWalle, Gerald

Highlight: Evidence establishing the approved methods, devices, or individuals administering analytical tests requires foundational support indicating approval from the director of the state crime laboratory or the director's designee.
Copies of the state crime laboratory certified records that have been electronically posted on the attorney general's website must be admitted as prima facie evidence of the matters stated in the record. Once prima facie evidence establishing the status of a designee is accepted, the burden shifts to the defendant to rebut the prima facie evidence.

City of Dickinson v. Etienne 2015 ND 193
Docket No.: 20140472
Filing Date: 8/6/2015
Case Type: Appeal - Criminal - Assault
Author: VandeWalle, Gerald

Highlight: A defendant may appeal a municipal court judgment of conviction to the district court, and the appeal must be taken in accordance with the Rules of Criminal Procedure.

State v. Jennewein (consolidated w/ 20140369) 2015 ND 192
Docket No.: 20140368
Filing Date: 8/5/2015
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Crothers, Daniel John

Highlight: Under the criminal discovery rules, the prosecution must furnish the defendant a copy of his prior criminal record that is within the prosecution's possession, custody, or control.
No compelling prejudice from consolidation of offenses is shown where a defendant asserts only a general desire to testify about some counts and not others.
If durng closing argument the prosecutor impermissibly comments on the defendant's failure to testify, the conviction must be reversed unless the error was harmless beyond a reasonable doubt after considering the entire record.

Guardianship/Conservatorship of B.K.J. 2015 ND 191
Docket No.: 20140446
Filing Date: 7/30/2015
Case Type: Appeal - Civil - Guardian/Conservator
Author: McEvers, Lisa K. Fair

Highlight: The district court's selection of a guardian is reviewed on appeal using the abuse of discretion standard.
In applying the statutory order of priorities in the appointment of a guardian for an incapacitated person, the district court is not required to make specific findings regarding which priority applied, but the findings must be sufficient to afford a clear understanding of the district court's decision.

Prairie Supply, Inc. v. Apple Electric, Inc., et al. (consolidated w/ 20140357) 2015 ND 190
Docket No.: 20140354
Filing Date: 7/30/2015
Case Type: Appeal - Civil - Contracts
Author: McEvers, Lisa K. Fair

Highlight: When a motion for a new trial is made in the district court, the party making the motion is limited on appeal to a review of the grounds presented to the district court in the motion for a new trial.

The City of Moorhead v. Bridge Company, et al. 2015 ND 189
Docket No.: 20140431
Filing Date: 7/30/2015
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: A franchise is a contract subject to the general rules of contract interpretation.
A fleeting reference in a brief to an unpled claim is insufficient to properly raise an issue for consideration.

Estate of Gassmann 2015 ND 188
Docket No.: 20140255
Filing Date: 7/28/2015
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Kapsner, Carol

Highlight: The pretrial exclusion of evidence by a motion in limine is a preliminary order and does not dispense with the need for the proponent of evidence to make an offer of proof at trial so the court can consider the proffered evidence in the context of other evidence presented at trial.