Opinions

State v. Henes 2009 ND 42
Docket No.: 20080166
Filing Date: 4/2/2009
Case Type: Appeal - Criminal - Sexual Offense
Author: Maring, Mary

Highlight: Issues not raised to the district court will not be addressed for the first time on appeal unless the alleged error rises to the level of obvious error under N.D.R.Crim.P. 52(b).
A district court enhances a sentence when it increases a defendant's sentence beyond the statutory maximum sentence to another offense level or sentencing range, or under a mandatory sentencing provision because of a subsequent offense.
A district court may consider an uncounseled conviction when exercising its sentencing discretion, but may not consider an uncounseled conviction when enhancing a term of imprisonment for a subsequent offense without evidence of a valid waiver of the right to counsel.

State v. Foreid 2009 ND 41
Docket No.: 20080128
Filing Date: 4/2/2009
Case Type: Appeal - Criminal - Sexual Offense
Author: Sandstrom, Dale

Highlight: An additional or different offense is not charged when an information is amended to fix an error in the classification of the charged offense and comply with statutory requirements.
For an instruction on a lesser included offense, there must be evidence on which the jury could rationally find beyond a reasonable doubt that the defendant is not guilty of the greater offense and to find beyond a reasonable doubt that the defendant is guilty of the lesser.

Disciplinary Board v. Overboe 2009 ND 40
Docket No.: 20080219
Filing Date: 4/2/2009
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: A final determination of lawyer misconduct by another jurisdiction conclusively establishes misconduct for a disciplinary proceeding in North Dakota and requires the imposition of identical discipline unless the lawyer demonstrates and it clearly appears: (1) the procedure in the other jurisdiction was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; (2) there was such an infirmity of proof establishing the misconduct in the other jurisdiction that the decision from the other jurisdiction cannot be accepted; (3) the imposition of the same discipline would result in a grave injustice; or (4) the misconduct warrants substantially different discipline in this state.

Sturn v. Director, N.D. Dept of Transportation 2009 ND 39
Docket No.: 20080199
Filing Date: 4/2/2009
Case Type: Appeal - Administrative - Department of Transportation
Author: VandeWalle, Gerald

Highlight: Radar is prima facie evidence of vehicle speed. The foundational requirements for conviction using radar are not the same as the requirement for reasonable suspicion.
An officer's testimony that a vehicle was "traveling rather quickly" and that he verified that it was speeding by using radar is sufficient for reasonable suspicion even if not accompanied by all the foundational elements necessary for conviction of speeding.

State v. Leingang 2009 ND 38
Docket No.: 20080168
Filing Date: 4/2/2009
Case Type: Appeal - Civil - Contempt of Court
Author: VandeWalle, Gerald

Highlight: Contempt is not available when sums of money may be collected through the process of execution.
A litigant may have a court decide the merits of a dispute only after demonstrating standing to litigate the issue before the court.
To establish standing, a litigant must have suffered some threatened or actual injury resulting from the putatively illegal action.

State v. Holbach (consolidated w/20080003) 2009 ND 37
Docket No.: 20080002
Filing Date: 4/2/2009
Case Type: Appeal - Criminal - Misc. Felony
Author: Crothers, Daniel John

Highlight: When an individual's constitutional right to travel has been restricted by a judicial order, any conduct in violation of that judicial order is not a constitutionally protected activity for purposes of the stalking statute.
Violence and other activities that harm another person are not constitutionally protected.
To have standing to raise a vagueness challenge, a litigant must almost always demonstrate that the statute in question is vague as applied to his own conduct, without regard to its potentially vague application in other circumstances.

State v. Geiser 2009 ND 36
Docket No.: 20080120
Filing Date: 4/2/2009
Case Type: Appeal - Criminal - Misc. Felony
Author: Kapsner, Carol

Highlight: The definition of "child" in N.D.C.C. 19-03.1-22.2(1)(b) does not include unborn children; therefore, the crime of "endangerment of a child or vulnerable adult" does not apply to an unborn child.

Verhey v. McKenzie 2009 ND 35
Docket No.: 20070234
Filing Date: 4/2/2009
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: When a child support obligor is unemployed or underemployed, the child support guidelines permit a court to impute income to the obligor.
The district court errs as a matter of law, however, if the court fails to comply with the child support guidelines in determining an obligor's child support obligation.

State v. Curtis 2009 ND 34
Docket No.: 20080007
Filing Date: 4/2/2009
Case Type: Appeal - Criminal - Assault
Author: Crothers, Daniel John

Highlight: A criminal defendant has a constitutional right to compulsory process to secure the attendance of witnesses who will provide testimony that is both favorable and material to a defense.
A subpoena must be served within a reasonable time before a witness's scheduled appearance, and whether service is within a reasonable time depends on the circumstances of each case.
A criminal defendant has a right to self-representation if the defendant knowingly and intelligently elects to do so.
A criminal defendant has a statutory right to require all communications with jurors after a case has been submitted to them to be made in open court and in the presence of the defendant.
A criminal defendant's statutory right to be present during the entire trial is of constitutional dimension, and the State must establish that a violation of a defendant's right to be present was harmless beyond a reasonable doubt.

Bragg, et al. v. Burlington Resources Oil & Gas Co. 2009 ND 33
Docket No.: 20080129
Filing Date: 4/2/2009
Case Type: Appeal - Civil - Contracts
Author: Maring, Mary

Highlight: An entity taking an interest in real property subject to a lis pendens--a written notice of a pending suit involving real property--is bound by all proceedings taken after the filing of the notice of lis pendens to the same extent as if that entity were a party to the underlying action, including a settlement of the underlying action.