Opinions

State v. Boespflug 2011 ND 30
Docket No.: 20100121
Filing Date: 2/8/2011
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: VandeWalle, Gerald

Highlight: The Legislature did not explicitly designate the three-year age difference requirement under N.D.C.C. 12.1-20-01(3) as an affirmative defense.
The Legislature did not make the reasonableness of the defendant's belief of the age difference a part of the three-year age difference requirement under N.D.C.C. 12.1-20-01(3).

State v. Gomez 2011 ND 29
Docket No.: 20100100
Filing Date: 2/8/2011
Case Type: Appeal - Criminal - Sexual Offense
Author: Crothers, Daniel John

Highlight: The use of special verdicts or general verdicts with special interrogatories is disfavored in criminal cases and the rules of criminal procedure generally do not provide for special verdicts or interrogatories.
Sexual contact, as defined in N.D.C.C. 12.1-20-02(5), includes any touching, whether through clothing or other covering, of the sexual parts of the person. The language of the statute does not limit sexual contact to any touching of the sexual parts of a child.
A criminal defendant has a constitutional right to a jury trial with an impartial jury selected from a representative cross-section of the community.
To establish a prima facie violation of the fair-cross-section requirement, a defendant must show that there was an underrepresentation of a distinctive group in jury venires and that the underrepresentation was due to systemic exclusion of the group in the jury-selection process.
A punishment in a non-capital case that is grossly disproportionate to the offense is cruel and unusual punishment.

Estate of Haugen 2011 ND 28
Docket No.: 20100165
Filing Date: 2/8/2011
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Crothers, Daniel John

Highlight: When the entire estate is distributed to the surviving spouse under section 30.1-04-02, N.D.C.C., nothing is distributed under section 30.1-04-03, N.D.C.C.
The district court is required to make specific findings that allow meaningful appellate review.

Community Homes of Bismarck, Inc. v. Main 2011 ND 27
Docket No.: 20100095
Filing Date: 2/8/2011
Case Type: Appeal - Civil - Landlord/Tenant
Author: Crothers, Daniel John

Highlight: A proper foundation must be established before witnesses may refer to notes or to other documents to refresh their memory, and the proper foundation requires witnesses to show a need to refresh their memory and to confirm the notes will assist them in refreshing their memory.
Opposing counsel has the right at trial to inspect a document used to refresh witnesses' recollections, to cross-examine the witnesses on the document, and to introduce relevant portions of the document into evidence.
A new written promise to pay a debt may revive a debt that is barred by the statute of limitations.
Whether a party has breached a lease is a finding of fact.

Whelan v. A.O. (CONFIDENTIAL) 2011 ND 26
Docket No.: 20100219
Filing Date: 2/8/2011
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Maring, Mary

Highlight: A trial court's findings of fact and conclusions of law on whether a sexually dangerous individual's treatment program is the least restrictive treatment facility or program available must be supported by clear and convincing evidence.
An appellate court will address only those issues that are thoroughly briefed and argued. Mere assertions of unconstitutionality are insufficient to adequately raise a constitutional question.

Interest of L.D.M. (CONFIDENTIAL) 2011 ND 25
Docket No.: 20100137
Filing Date: 2/8/2011
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Maring, Mary

Highlight: A trial court reviewing the civil commitment of a sexually dangerous individual must make sufficient factual findings to provide the appellate court with the basis for the court's decision.

Doll v. Doll 2011 ND 24
Docket No.: 20100133
Filing Date: 2/8/2011
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: On appeal from a trial court's award of primary residential responsibility, the evidence is not reweighed nor the credibility of witnesses reassessed.

State v. Huber 2011 ND 23
Docket No.: 20100209
Filing Date: 2/8/2011
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Sandstrom, Dale

Highlight: Warrantless discovery of evidence in a defendant's home is justified under the emergency exception if entry was actually motivated by a perceived need to render aid or assistance.
Exigent circumstances and the emergency exception are analogous, but the emergency exception is focused on law enforcement protecting citizens and property as part of its general caretaking responsibilities.

Irish Oil & Gas, Inc. v. Riemer, et al. 2011 ND 22
Docket No.: 20100064
Filing Date: 2/8/2011
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Crothers, Daniel John

Highlight: A contract must be read in its entirety so that all of its provisions are taken into consideration to determine the true intent of the parties.
Distinguishing between a partial or a total failure of consideration is important because it dictates the remedy.

Matter of G.R.H. (CONFIDENTIAL) 2011 ND 21
Docket No.: 20100114
Filing Date: 2/8/2011
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Sandstrom, Dale

Highlight: North Dakota's statutes for the commitment of sexually dangerous individuals function as a proper civil commitment framework because they contain rigid procedural and evidentiary safeguards.
In reviewing a petition for discharge as a sexually dangerous individual, the district court must consider all evidence regarding the individual's treatment to ensure adequate protection for the public and treatment for the individual.