Opinions

Tweed v. State 2010 ND 38
Docket No.: 20090171
Filing Date: 3/16/2010
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Kapsner, Carol

Highlight: To obtain post-conviction relief on the basis of newly discovered evidence, the petitioner must demonstrate (1) the evidence was discovered after trial; (2) the failure to learn about the evidence at the time of trial was not the result of a lack of diligence; (3) the newly discovered evidence is material to issues at trial; and (4) the weight and quality of the evidence would likely result in an acquittal.
To obtain post-conviction relief on the basis of ineffective assistance of counsel, the petitioner must demonstrate (1) counsel's representation fell below an objective standard of reasonableness, and (2) the petitioner was so prejudiced by counsel representation that, but for counsel's errors, the result of the proceeding would have been different.

Oie v. State 2010 ND 37
Docket No.: 20090365
Filing Date: 3/16/2010
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Order dismissing application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(6).

State v. Henrickson 2010 ND 36
Docket No.: 20090229
Filing Date: 3/16/2010
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: A criminal judgment entered after a jury found the defendant guilty of escape is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (7).

Parisien v. Parisien 2010 ND 35
Docket No.: 20090086
Filing Date: 3/5/2010
Case Type: Appeal - Civil - Divorce - Property
Author: Sandstrom, Dale

Highlight: A district court may award spousal support to a party in a divorce action for any period of time. Spousal support determinations are findings of fact and will not be set aside unless clearly erroneous.
Spousal support awards must be made in consideration of the needs of the spouse seeking support and of the supporting spouse's needs and ability to pay.
A greater property distribution does not necessarily eliminate the need for spousal support.

Davis v. Enget, et al. 2010 ND 34
Docket No.: 20090329
Filing Date: 2/22/2010
Case Type: Appeal - Civil - Malpractice
Author: Crothers, Daniel John

Highlight: In legal malpractice claims, expert testimony is generally required to establish the applicable standard of care and whether an attorney's conduct fell below that standard.
New evidence cannot be tendered at oral arguments because it would be fundamentally unfair to fault a trial court's decision on the basis of evidence the trial court did not have the opportunity to consider.

Wolt v. Wolt (cross ref. 20090103) 2010 ND 33
Docket No.: 20090126
Filing Date: 2/22/2010
Case Type: Appeal - Civil - Other
Author: Kapsner, Carol

Highlight: A district court's finding of domestic violence is a finding of fact that will not be overturned unless it is clearly erroneous. A domestic violence protection order petitioner must prove "actual or imminent domestic violence" by a preponderance of the evidence.
"Domestic violence" includes physical harm, bodily injury, sexual activity compelled by physical force, assault, or the infliction of fear of imminent physical harm, bodily injury, sexual activity compelled by physical force, or assault, not committed in self-defense, on the complaining family or household members.
When the type of domestic violence justifying a domestic violence protection order is based upon fear, the harm feared by the petitioner must be "actual or imminent."
Even when a disorderly conduct restraining order has previously been entered and remains in effect, the doctrine of res judicata does not bar the subsequent entry of a domestic violence protection order.

Hagerott v. Morton Co. Bd. of Commissioners 2010 ND 32
Docket No.: 20090180
Filing Date: 2/22/2010
Case Type: Appeal - Civil - Administrative Proceeding
Author: Maring, Mary

Highlight: A person is aggrieved and has standing to appeal a county commission zoning decision if the person has some legal interest that may be enlarged or diminished by the decision appealed from.
A county commission's decision to issue a conditional use permit must be affirmed unless the commission acted arbitrarily, capriciously, or unreasonably, or if there is not substantial evidence supporting the decision.

Dufner v. Trottier (Consolidated w/20090251; Cross-Ref. with 20010163) 2010 ND 31
Docket No.: 20090211
Filing Date: 2/17/2010
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: Prolonged exposure to adult conflict is not in a child's best interests.
The standards to modify custody and to modify visitation are similar but different. Custody modifications require the movant to establish a prima facie case prior to entitlement of an evidentiary hearing.
In custody modification proceedings, only moving papers and supporting affidavits can be used to establish a prima facie case entitling a movant to an evidentiary hearing.

State v. Byzewski (CONSOLIDATED WITH 20090151) 2010 ND 30
Docket No.: 20090150
Filing Date: 2/17/2010
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Maring, Mary

Highlight: Under N.D.R.Crim.P. 11(a)(2), "a defendant may enter a conditional plea of guilty, reserving in writing the right to have an appellate court review an adverse determination of a specified pretrial motion."
By engaging in behavior that led to a domestic violence protection order, the defendant forfeited his right to travel where the victim works.
A protection order and the defendant's presence on the campus provided law enforcement officers with reasonable and articulable suspicion to stop his vehicle.

State v. Addai 2010 ND 29
Docket No.: 20090079
Filing Date: 2/17/2010
Case Type: Appeal - Criminal - Homicide
Author: Sandstrom, Dale

Highlight: During a stop of a vehicle, a law enforcement officer seizes every person in the vehicle, and therefore a passenger in the vehicle may challenge the legality of the stop.
Identification testimony must be suppressed if, under the totality of the circumstances, the identification procedure was unnecessarily suggestive and the identification is unreliable.
A single-person, showup identification is inherently suggestive, but is not necessarily unduly suggestive and may serve legitimate law enforcement purposes in some cases.
If a party fails to comply with N.D.R.Crim.P. 16, a discovery rule, the district court has discretion in applying a remedy.