Opinions

State ex rel. K.B. v. Bauer 2009 ND 45
Docket No.: 20080092
Filing Date: 4/2/2009
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: In calculating income to be imputed to an unemployed obligor under the child support guidelines, a court may taken into consideration the fact that the obligor's past income circumstances had changed and were not a reliable indicator of his present or future earning capacity.
In calculating imputed income, the court has discretion to exclude an obligor's past earnings from a temporary college internship that has ended.
A child support obligation may be adjusted if the obligor's ability to provide support is reduced due to visitation-related travel expenses, but the expenses must be deducted from the obligor's net income, not directly from the child support obligation.

State v. Gibbs 2009 ND 44
Docket No.: 20070378
Filing Date: 4/2/2009
Case Type: Appeal - Criminal - Homicide
Author: Crothers, Daniel John

Highlight: A party must make a timely objection to an alleged error in the district court so the court may take appropriate action, if possible, to remedy any prejudice that may have resulted from the claimed error.
The prosecution may not comment on a defendant's failure to testify in a criminal case.
A jury is generally presumed to follow curative instructions.
The prosecution's statement during closing argument that there is no explanation for the prosecution's evidence does not constitute an improper comment on an accused's failure to testify where persons other than the accused could have offered contradictory evidence.

Interest of J.S.L. (CONFIDENTIAL) 2009 ND 43
Docket No.: 20080227
Filing Date: 4/2/2009
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: VandeWalle, Gerald

Highlight: In determining whether hearsay evidence has sufficient guarantees of trustworthiness to qualify for the residual hearsay exception, the circumstances surrounding the statement are compared to the closest applicable hearsay exception.
Hearsay evidence is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts only if no other evidence, or very little other evidence, is available on the same point.
The introduction of allegedly inadmissible evidence in a non-jury case will be reversed only if all the competent evidence is insufficient to support the judgment or it affirmatively appears that the incompetent evidence induced the court to make an essential finding which would not otherwise have been made.

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.