Opinions

Pemberton v. State 2021 ND 85
Docket No.: 20200181
Filing Date: 5/20/2021
Case Type: POST-CONVICTION RELIEF
Author: Tufte, Jerod E.

Highlight: To be convicted of attempted murder, the accused must have an intent to kill. Attempted “knowing” murder under N.D.C.C. §§ 12.1-06-01 and 12.1-16-01(1)(a) is a non-cognizable offense.

A federal constitutional error is harmless if we are convinced the error did not contribute to the verdict.

Our determination of whether an error is harmless looks at the effect of the error on this jury, rather than speculating whether a hypothetical jury would convict the defendant absent the error. An erroneous jury instruction informing the jury that it could convict a defendant of a non-cognizable offense would not be cured by an appellate court’s determination that the record evidence unmistakably established guilt of a cognizable offense.

Zander, et al. v. Morsette 2021 ND 84
Docket No.: 20200211
Filing Date: 5/13/2021
Case Type: OTHER (Civil)
Author: Tufte, Jerod E.

Highlight: In a wrongful death action, a plaintiff is entitled to damages for injuries resulting from the death. Damages resulting from negligence preceding the death is not compensable under N.D.C.C. §§ 32-21-02 or 32-03.2-04.

At trial, relevant evidence is admissible, and irrelevant evidence is not admissible. Because the defendant admitted liability for the plaintiff’s damages, evidence of the defendant’s intoxication is not relevant in determining compensatory damages.

If a party fails to object to a jury instruction, this Court’s review is limited to whether a plain error exists in the instructions affecting substantial rights.

Punitive damages may be awarded against a defendant whose conduct is oppressive, fraudulent, or malicious. To support a punitive damages claim, the plaintiff must present sufficient evidence to support a finding that a preponderance of the evidence demonstrates conduct with a state of mind evincing an intent to harm or injure another person.

Atkins v. State 2021 ND 83
Docket No.: 20200266
Filing Date: 5/6/2021
Case Type: POST-CONVICTION RELIEF
Author: McEvers, Lisa K. Fair

Highlight: A district court may summarily dismiss a successive application for post-conviction relief under N.D.C.C. § 23-32.1-09(1) on its own motion before the State answers when the issues raised in the application have been previously decided by this Court.

An applicant for post-conviction relief is entitled to notice that the application may be summarily dismissed. A court’s failure to provide notice prior to summary dismissal constitutes harmless error if a party fails to establish prejudice.

A district court’s error in dismissing an application for post-conviction relief based on an affirmative defense not pleaded by the State does not prejudice the applicant when the court had alternative statutory authority to summarily dismiss the application.

Lizakowski v. Lizakowski 2021 ND 82
Docket No.: 20200269
Filing Date: 5/6/2021
Case Type: CHILD CUST & SUPPORT (Div.\Other)
Author: VandeWalle, Gerald W.

Highlight: An amended divorce judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(2), (4), and (7), and double costs and attorney’s fees are awarded under N.D.R.App.P. 38.

City of West Fargo v. Medbery 2021 ND 81
Docket No.: 20200222
Filing Date: 5/6/2021
Case Type: OTHER (Crim.)
Author: McEvers, Lisa K. Fair

Highlight: This Court does not weigh conflicting evidence or judge credibility of witnesses on appeal. We will affirm a district court’s decision on a motion to suppress if there is competent evidence capable of supporting the court’s findings, and the decision is not contrary to the manifest weight of the evidence.

When a law enforcement officer approaches a parked vehicle to inquire in a conversational manner whether an occupant is okay or needs assistance, the officer is engaged in community caretaking. A community caretaking encounter can lead to a lawful seizure under the Fourth Amendment, provided the officer undertakes the caretaking encounter to aid a person in apparent need of assistance, and during the encounter the officer develops a reasonable and articulable suspicion of criminal activity.

State v. Lafromboise 2021 ND 80
Docket No.: 20200294
Filing Date: 5/6/2021
Case Type: MISC. STATUTORY OFFENSE (FELONY)
Author: Crothers, Daniel John

Highlight: A district court’s decision to grant an extension or a continuance for good cause will not be reversed on appeal unless the court abused its discretion.

Interest of K.V. 2021 ND 79
Docket No.: 20200257
Filing Date: 5/6/2021
Case Type: JUVENILE LAW (Criminal)
Author: McEvers, Lisa K. Fair

Highlight: Concerns about officer safety may justify a pat down search for weapons, but a subsequent pocket search must be justified as independently reasonable because they are distinct efforts. A pat down may justify a pocket search when an officer’s tactile perceptions lead to the conclusion the subject possesses a weapon or it is clear from the plain feel the object felt during the pat down is contraband.

The odor of marijuana alone is not sufficient to establish probable cause to search a passenger in a vehicle, but it is a factor that may contribute to a finding of probable cause to conduct a warrantless search under the totality of the circumstances.

Shaw v. State 2021 ND 78
Docket No.: 20200190
Filing Date: 4/28/2021
Case Type: POST-CONVICTION RELIEF
Author: Per Curiam

Highlight: A district court order denying an application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (7).

Interest of P.F. 2021 ND 77
Docket No.: 20200283
Filing Date: 4/28/2021
Case Type: JUVENILE LAW
Author: Per Curiam

Highlight: A juvenile court order finding children to be deprived is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Interest of J.O. 2021 ND 76
Docket No.: 20200194
Filing Date: 4/20/2021
Case Type: JUVENILE LAW
Author: VandeWalle, Gerald W.

Highlight: The termination of a guardianship in one case does not create a factual presumption that a guardianship in a related case should be terminated.

Under N.D.C.C. § 27-20.1-16(3)(c), a petitioner must show by clear and convincing evidence that the circumstances that led to the guardianship no longer exist.

A juvenile court does not need to find exceptional circumstances to extend a guardianship.

Under N.D.C.C. § 27-20.1-17(1), a juvenile court does not need to use the words “good cause” to make a finding rising to the level of good cause.