Opinions

Disciplinary Board v. O'Donnell (cross ref. 20070340) 2008 ND 17
Docket No.: 20080039
Filing Date: 2/20/2008
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Interim suspension of lawyer orderd.

State v. Carlsen 2008 ND 16
Docket No.: 20070126
Filing Date: 2/4/2008
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Conviction of reckless endangerment under circumstances manifesting extreme indifference to the value of human life is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (4).

Judicial Vacancy in Judgeship No. 1, East Central Judicial District 2008 ND 15
Docket No.: 20070368
Filing Date: 2/4/2008
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: Judgeship retained at Fargo in the East Central Judicial District.

Wold v. Wold 2008 ND 14
Docket No.: 20060342
Filing Date: 1/23/2007
Case Type: Appeal - Civil - Divorce - Property
Author: VandeWalle, Gerald

Highlight: Generally, in a divorce, a court's property valuations are not clearly erroneous if they are within the range of the evidence presented.
Under N.D.C.C. 14-05-24.1, a district court in a divorce case may require one party to pay spousal support to the other for any period of time.
Spousal support awards must be made in consideration of the disadvantaged spouse's needs and the supporting spouse's needs and ability to pay, but it is not necessary for the court to determine a spouse is disadvantaged by the divorce to award spousal support to that spouse.
Property division and spousal support are interrelated and often must be considered together.
It is within the district court's discretion to order security for a spousal support obligation.

State v. Desjarlais (Consolidated w/20070157) 2008 ND 13
Docket No.: 20070156
Filing Date: 1/22/2008
Case Type: Appeal - Criminal - Misc. Felony
Author: Sandstrom, Dale

Highlight: There is no obvious error under N.D.R.Crim.P. 52(b) unless there is a clear deviation from a clearly established rule of law.

Van Sickle, et al. v. Hallmark & Assoc., Inc., et al. 2008 ND 12
Docket No.: 20070154
Filing Date: 1/22/2008
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Crothers, Daniel John

Highlight: A debt cannot be discharged in bankruptcy unless the creditor received notice of the bankruptcy proceedings.
State and federal courts have concurrent jurisdiction to decide whether a creditor's claim has been discharged in a bankruptcy proceeding if the creditor claims he did not have notice or actual knowledge of the bankruptcy proceeding.
Claims for conversion and breach of contract may arise under the same facts if the defendant's conduct would give rise to liability independent of the fact that a contract exists between the parties.
A claim for tortious interference ordinarily requires a showing that a person who is not a party to the contract interfered with the contract.
The Supreme Court does not issue advisory opinions.

Koble v. Koble 2008 ND 11
Docket No.: 20070198
Filing Date: 1/17/2008
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Leno v. Department of Transportation 2008 ND 10
Docket No.: 20070213
Filing Date: 1/17/2008
Case Type: Appeal - Administrative - Department of Transportation
Author: Sandstrom, Dale

Highlight: The Department is not required to show an Intoxilyzer machine has been recalibrated following a movement of the machine to prove an Intoxilyzer test was fairly administered.
An agency's decision will be affirmed if its findings of fact are supported by a preponderance of the evidence. When deciding whether a preponderance of the evidence supports an agency's findings, we do not re-weigh the evidence or substitute our judgment for that of the agency.

Interest of J.S., et al. (CONFIDENTIAL) 2008 ND 9
Docket No.: 20070123
Filing Date: 1/17/2008
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Crothers, Daniel John

Kourajian v. Kourajian 2008 ND 8
Docket No.: 20070175
Filing Date: 1/17/2008
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: A party seeking custody modification under N.D.C.C. 14-09-06.6(4) is entitled to an evidentiary hearing if the party brings a prima facie case, by alleging, with supporting affidavits, sufficient facts which, if uncontradicted, would support a custody modification in favor of that party.
The purpose of the prima facie case requirement in N.D.C.C. 14-09-06.6(4) is to avoid holding custody modification hearings based on mere allegations alone.

City of Minot v. Boger, et al. (Cross-reference w/ 20060163) 2008 ND 7
Docket No.: 20070158
Filing Date: 1/17/2008
Case Type: Appeal - Civil - Other
Author: VandeWalle, Gerald

Highlight: The due process clauses of the federal and state constitutions are not violated under the void-for-vagueness doctrine if the challenged language, when measured by common understanding and practice, gives adequate warning of the conduct proscribed and marks boundaries sufficiently distinct for fair administration of the law.
A local government has a substantial interest in aesthetics and has the right to maintain its aesthetics through zoning regulations.

Overland v. Overland 2008 ND 6
Docket No.: 20070070
Filing Date: 1/17/2008
Case Type: Appeal - Civil - Divorce - Property
Author: Sandstrom, Dale

Highlight: A district court's division of property does not need to be equal to be equitable, but any substantial disparity must be explained.
When awarding spousal support, a district court must consider the relevant factors under the Ruff-Fischer guidelines. A court must also consider the needs of the spouse seeking support and of the supporting spouse's needs and ability to pay.

City of Grand Forks v. Mitchell 2008 ND 5
Docket No.: 20070153
Filing Date: 1/17/2008
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Maring, Mary

Highlight: A police officer's stop of a vehicle bearing no license plates with a white 8 ? x 11 sheet of paper with a date written in black marker posted in its rear window that the officer did not recognize as an authentic temporary registration certificate was constitutionally permissible because the officer had reasonable and articulable suspicion of a violation of the motor vehicle registration law.
A police officer's subjective intent is not germane for purposes of the objective inquiry used to determine whether a reasonable and articulable suspicion existed that an individual was violating the law.

State v. Wegley 2008 ND 4
Docket No.: 20070027
Filing Date: 1/17/2008
Case Type: Appeal - Criminal - Sexual Offense
Author: Kapsner, Carol

Highlight: Even if a defendant objects to hearsay testimony about a child's out-of-court statement at a pre-trial hearing, the defendant's failure to object at trial limits review to determining whether the admission of that testimony into evidence constitutes obvious error affecting substantial rights.
To establish obvious error, a defendant must show error that is plain and affects substantial rights, and to affect substantial rights a plain error must have been prejudicial, or have affected the outcome of the proceeding.
Nonverbal conduct is a statement under the hearsay rules if the nonverbal conduct was intended as an assertion.
A declarant's out-of-court statement is not hearsay if the declarant testifies at trial and is subject to cross-examination concerning the statement, and the statement is consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.

State v. Emery 2008 ND 3
Docket No.: 20070147
Filing Date: 1/17/2008
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: VandeWalle, Gerald

Highlight: Ordering the surrender of license plates does not fit the maximum penalty for a first DUI offense.
A DUI conviction cannot be used to enhance the penalty of a subsequent DUI conviction when there is no proof that the defendant waived his right to counsel before pleading guilty to the earlier DUI charge.

State v. Odom (Cross-Ref w/20060106) 2008 ND 2
Docket No.: 20070187
Filing Date: 1/17/2008
Case Type: Appeal - Criminal - Drugs/Contraband
Author:

Highlight: A district court drug-offenses criminal judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (7).

State v. St. Claire 2008 ND 1
Docket No.: 20070222
Filing Date: 1/17/2008
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: Judgment in a drug case following denial of motion to suppress evidence is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (3).

Brewer v. Ziegler 2007 ND 207
Docket No.: 20070152
Filing Date: 12/20/2007
Case Type: Appeal - Administrative - Department of Transportation
Author: Crothers, Daniel John

Highlight: A highway patrol officer has the express power to enforce the state motor vehicle laws and to enforce all laws relating to the use or presence of alcoholic beverages in motor vehicles, and, therefore, has the power to arrest a person who is located on private property while violating the provisions of those laws.
The failure to give an implied consent advisory does not require exclusion of the preliminary breath test results.
Horizontal gaze nystagmus test results may be used as circumstantial evidence of intoxication without requiring scientific foundation by expert testimony.

Manitoba Public Ins. Corp. v. Dakota Fire Ins. Co. 2007 ND 206
Docket No.: 20070061
Filing Date: 12/20/2007
Case Type: Appeal - Civil - Insurance
Author: Sandstrom, Dale

Highlight: A procedural remedy is not a vested right and is subject to repeal, modification, or change.

Hsu v. Marian Manor Apartments 2007 ND 205
Docket No.: 20070040
Filing Date: 12/20/2007
Case Type: Appeal - Civil - Contracts
Author: Maring, Mary

Highlight: A contract providing for the lease of a clinic owned by a nursing home to a licensed physician, which named the physician lessee using the suffix "M.D.," and which provided that the lessee shall obtain and maintain all necessary licenses to operate a clinic, unambiguously required the physician to maintain a license to practice medicine.
Revocation of a physician's license to practice medicine is a breach of a lease unambiguously requiring the physician to maintain a license to practice medicine entitling the lessor to refuse to renew the lease.

Disciplinary Board v. Nemec 2007 ND 204
Docket No.: 20070358
Filing Date: 12/19/2007
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Interim suspension of lawyer ordered.

Disciplinary Board v. Johnson (Consolidated w/ 20070108) 2007 ND 203
Docket No.: 20070107
Filing Date: 12/19/2007
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: A lawyer may be disciplined for writing a letter to a third party containing false statements that have no substantial purpose other than to delay or to embarrass or burden the third party.
A lawyer may be disciplined for making false statements to the court.
Defiance of a disciplinary admonition may increase the sanction imposed on a lawyer.
Lawyer suspended from the practice of law for 60 days and ordered to pay the costs and expenses of the disciplinary proceeding.

Nagel v. Workforce Safety and Ins., et al. 2007 ND 202
Docket No.: 20070120
Filing Date: 12/19/2007
Case Type: Appeal - Administrative - Workers Compensation
Author: VandeWalle, Gerald

Highlight: Equitable estoppel may be applied to bar an assertion that a claim was untimely under N.D.C.C. 65-05-01.
In certain situations, such as a relapse of a condition caused by a work-related injury, the disallowance of a workers compensation claim following relapse may be a notifying event which ends the tolling of the statute of limitations for the injured worker.

Bartch v. ND Dept. of Transportation 2007 ND 201
Docket No.: 20070160
Filing Date: 12/17/2007
Case Type: Appeal - Administrative - Department of Transportation
Author: Crothers, Daniel John

Highlight: Display of an expired registration tab on a license plate justifies a traffic stop.

Bowman v. ND Workforce Safety and Insurance 2007 ND 200
Docket No.: 20070227
Filing Date: 12/13/2007
Case Type: Appeal - Civil - Administrative Proceeding
Author:

Highlight: A judgment affirming an order of Workforce Safety and Insurance denying an application for workers compensation benefits is summarily affirmed under N.D.R.App.P. 35.1(a)(5).

Christofferson v. N.D. Dept. of Health 2007 ND 199
Docket No.: 20070129
Filing Date: 12/13/2007
Case Type: Appeal - Civil - Administrative Proceeding
Author: Crothers, Daniel John

Highlight: A tire collection that may benefit agricultural activities may not be a "beneficial use" because of "accumulations in total, on human and animal health, the environment, and on local and state government, which may be ultimately financially responsible to dispose of the tires."

Matter of Midgett 2007 ND 198
Docket No.: 20070109
Filing Date: 12/13/2007
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Crothers, Daniel John

Highlight: The Sixth Amendment does not apply to a civil commitment proceeding for a sexually dangerous individual.
In a civil commitment proceeding for a sexually dangerous individual, evidence of prior sexually predatory conduct or criminal conduct, including a record of the juvenile court, is admissible.

State v. Schmeets 2007 ND 197
Docket No.: 20060375
Filing Date: 12/13/2007
Case Type: Appeal - Criminal - Misc. Felony
Author: Maring, Mary

Highlight: The threshold question for determining whether a person tampered with constitutes a "witness" is whether the individual charged with tampering with that person had a reasonably founded belief that the person tampered with would testify.
The person tampered with in a witness tampering case need not be included on a witness list filed in a case in order for an individual to be convicted of tampering with that witness.

Christian v. Christian 2007 ND 196
Docket No.: 20070053
Filing Date: 12/13/2007
Case Type: Appeal - Civil - Divorce - Property
Author: Sandstrom, Dale

Highlight: Permanent spousal support is appropriate when the economically disadvantaged spouse cannot be equitably rehabilitated to make up for the opportunities and development she lost during the course of the marriage.
When the parties to a divorce have reached an agreement on all matters pertaining to division of their property, there is no reason for the district court to hear evidence of the value of marital property.
In deciding whether to award attorney fees in a divorce action, the district court must balance one party's needs against the other party's ability to pay.
Submission of an affidavit to support an award of attorney fees is not necessary when the award is supported by testimony and other documentary evidence received in an evidentiary hearing.
Evidence that is discoverable before trial does not qualify as newly discovered evidence.
A property settlement agreement that is unconscionable may be set aside.

State v. Haugen 2007 ND 195
Docket No.: 20070141
Filing Date: 12/13/2007
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: VandeWalle, Gerald

Highlight: Carrying a loaded firearm in a vehicle is a strict liability offense, punishable without regard to intent, knowledge, willfulness, or negligence.
An appellant assumes the consequences and risks for failure to file a complete transcript, and an issue will not be reviewed if the record on appeal does not allow for a meaningful and intelligent review of the alleged error.

Evenson v. Evenson 2007 ND 194
Docket No.: 20060148
Filing Date: 12/13/2007
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: Marital property valuations within the range of evidence presented to the district court are not clearly erroneous.
In deciding whether to award attorney fees in a divorce proceeding, the district court should consider the property owned by each party, their relative incomes, whether property is liquid or fixed assets, and whether the actions of either party have increased the time spent on the case.
Evidence must have been in existence at the time of trial to constitute newly discovered evidence.
A new trial normally will not be granted to enable the movant to present her case under a different theory than she adopted at trial.

State v. Sabo 2007 ND 193
Docket No.: 20070090
Filing Date: 12/13/2007
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Maring, Mary

Highlight: A conviction rests upon insufficient evidence only when, after reviewing the evidence in the light most favorable to the prosecution and giving the prosecution the benefit of all inferences reasonably to be drawn in its favor, no rational fact finder could find the defendant guilty beyond a reasonable doubt.
The government's closing rebuttal argument is limited to addressing only the issues the defendant raised in his closing argument.

State v. Hurt 2007 ND 192
Docket No.: 20070081
Filing Date: 12/13/2007
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Kapsner, Carol

Highlight: In a review of a district court's decision to grant or deny a motion to suppress, the district court's findings of fact are given deference, and conflicts in testimony are resolved in favor of affirmance.
One exception to the warrant requirement is voluntary consent by the individual whose property is searched, or by a third party who possesses common authority over the premises.
The Fourth Amendment does not require law enforcement to provide co-occupants opportunity to assert their Fourth Amendment rights at the door; rather, the protections provide that a physically present co-occupant, who expressly refuses to permit the search despite the consent of his fellow occupant, renders the warrantless search unreasonable as to him.
The co-occupant who is not present at the door and does not refuse the search at the time his fellow occupant provides consent "loses out" on his opportunity to exclude evidence gathered in a common-area, co-occupant consent search.

Witzke v. Gonzales 2007 ND 191
Docket No.: 20070162
Filing Date: 12/13/2007
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author:

Highlight: Summary judgment for claims of private nuisance and defamation is summarily affirmed under N.D.R.App.P. 35.1(a)(6).

State v. Matuska 2007 ND 190
Docket No.: 20070124
Filing Date: 12/13/2007
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: An order denying a request to withdraw a guilty plea may be summarily affirmed under N.D.R.App.P. 35.1(a)(4).

City of Jamestown v. Baker 2007 ND 189
Docket No.: 20070220
Filing Date: 12/13/2007
Case Type: Appeal - Criminal - Theft
Author:

Highlight: A criminal judgment for theft is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

State v. $3719 U.S. Currency 2007 ND 188
Docket No.: 20070149
Filing Date: 12/13/2007
Case Type: Appeal - Civil - Other
Author: Per Curiam

Highlight: Order granting forfeiture of $3,719 is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

State v. Gandesbery 2007 ND 187
Docket No.: 20070197
Filing Date: 12/13/2007
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: Order revoking probation is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Interest of B.D.K. (CONFIDENTIAL) 2007 ND 186
Docket No.: 20070320
Filing Date: 12/5/2007
Case Type: Appeal - Civil - Mental Health
Author: Maring, Mary

Highlight: A court is not required to order a less restrictive treatment than hospitalization when a mentally ill person requiring treatment under N.D.C.C. 25-03.1-07 makes the bare assertion that he will hire his own psychiatrist, because such assertion does not constitute a viable alternative to hospitalization.

Sundby v. Disciplinary Board 2007 ND 185
Docket No.: 20070332
Filing Date: 12/3/2007
Case Type: Discipline - Attorney - Original Proceeding
Author:

Highlight: Lawyer reinstatement ordered.

Estate of Egeland (Cross-ref. w/ 20060319) 2007 ND 184
Docket No.: 20070075
Filing Date: 11/27/2007
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Maring, Mary

Highlight: A court appropriately considers the benefit received by joint obligors in determining the right to contribution between them under N.D.C.C. 9-01-08.
On appeal due regard is givien to the trial court's opportunity to assess the credibility of the witnesses, and the trial court's choice between two permissible views of the evidence is not clearly erroneous.

Tarnavsky v. Tarnavsky, et al. 2007 ND 183
Docket No.: 20070021
Filing Date: 11/26/2007
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Per Curiam

Highlight: Order denying "motion to expunge" under N.D.R.Civ.P. 60(b)(iii) and (iv) summarily affirmed under N.D.R.App.P. 35.1(a)(1) and (4).

Estate of Truax 2007 ND 182
Docket No.: 20070121
Filing Date: 11/19/2007
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Per Curiam

Highlight: Judgment denying a motion to amend a judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Hendricks Prop. Mgmt. Corp. v. Birchwood Prop. Ltd. Partnership, et al. 2007 ND 181
Docket No.: 20070028
Filing Date: 11/19/2007
Case Type: Appeal - Civil - Contracts
Author: Maring, Mary

Highlight: The interpretation of an agency agreement is governed by laws for construing contracts except to the extent the agent's fiduciary relationship with the principal requires a special rule, or the parties agree otherwise.
A district court's findings of fact and conclusions of law must be stated with sufficient specificity to provide reviewing courts with a clear understanding of the district court's decision, and a district court's findings of fact are adequate if the reviewing court is able to understand the factual basis for the district court's decision.
A liquidated damage clause is valid if the damages stemming from a breach are impractical or extremely difficult to estimate when the contract was entered, the parties reasonably endeavored to fix their damages, and the amount stipulated bears a reasonable relation to the probable damages and is not disproportionate to any damages reasonably anticipated.
Face-to-face negotiations are not necessary to uphold a liquidated damage clause.

Intercept Corp. v. Calima Financial LLC, et al. 2007 ND 180
Docket No.: 20060307
Filing Date: 11/14/2007
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: The corporate veil of a limited liability company may be pierced if the same conditions and circumstances under which the corporate veil of a corporation may be pierced under North Dakota law are present.
A lack-of-personal-jurisdiction defense is waived if it is neither made by motion nor included in a responsive pleading.

Axtmann, et al. v. Chillemi, et al. 2007 ND 179
Docket No.: 20070006
Filing Date: 11/14/2007
Case Type: Appeal - Civil - Corporations
Author: VandeWalle, Gerald

Highlight: The officers and directors of a corporation generally are not liable for the ordinary debts of the corporation, but a corporation's corporate veil may be disregarded when the corporation has insufficient capitalization for purposes of the corporate undertaking.
A district court's decision to pierce a corporate veil and impose personal liability on an officer or director is reviewed under the clearly erroneous standard.

State v. McAvoy 2007 ND 178
Docket No.: 20070095
Filing Date: 11/14/2007
Case Type: Appeal - Criminal - Sexual Offense
Author: Sandstrom, Dale

Highlight: Conditions of probation are interpreted as mandatory.
When a violation of probation is contested, the State needs to prove a probation violation by a preponderance of the evidence.

Hawes v. ND Department of Transportation (consolidated w/20070060) 2007 ND 177
Docket No.: 20070059
Filing Date: 11/14/2007
Case Type: Appeal - Administrative - Department of Transportation
Author: VandeWalle, Gerald

Highlight: That the defendant's vehicle is out of gas does not render the vehicle inoperable as a matter of law.
When there has been no objection to a prosecutor's argument, the judgment will not be reversed unless it was an obvious error affecting a defendant's substantial rights.

State v. Jacobs 2007 ND 176
Docket No.: 20070033
Filing Date: 11/14/2007
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: Amended criminal judgment for possession of methamphetamine with intent to deliver and possession of drug paraphernalia is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Mountrail Bethel Home v. Lovdahl (Cross-reference w/ 20060002) 2007 ND 175
Docket No.: 20070148
Filing Date: 11/14/2007
Case Type: Appeal - Civil - Contracts
Author: Per Curiam

Highlight: Judgment finding enforceable contract did not exist is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Skarsgard (Consolidated w/20070084) 2007 ND 174
Docket No.: 20070083
Filing Date: 11/14/2007
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Per Curiam

Highlight: Criminal judgments for driving under the influence of alcohol and driving with a suspended license are summarily affirmed under N.D.R.App.P. 35.1(a)(3), (4), and (7).

State v. Thompson (Consolidated w/20070143) 2007 ND 173
Docket No.: 20070142
Filing Date: 11/14/2007
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: An order revoking probation is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

Oie v. State 2007 ND 172
Docket No.: 20070119
Filing Date: 11/14/2007
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Denial of application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. $2996.00 U.S. Currency 2007 ND 171
Docket No.: 20070082
Filing Date: 11/14/2007
Case Type: Appeal - Civil - Other
Author: Per Curiam

Highlight: Order granting forfeiture of $2996.00 is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (7).

Disciplinary Board v. Light 2007 ND 170
Docket No.: 20070327
Filing Date: 11/14/2007
Case Type: Discipline - Attorney - Original Proceeding
Author:

Highlight: Interim suspension of lawyer ordered.

Rodenbiker v. Workforce Safety and Insurance 2007 ND 169
Docket No.: 20070114
Filing Date: 10/29/2007
Case Type: Appeal - Civil - Administrative Proceeding
Author: Maring, Mary

Highlight: Section 65-05-10, N.D.C.C., does not provide for an award of partial disability benefits when an injured worker cannot be returned to substantial gainful employment as defined under N.D.C.C. 65-05.1-01(3), and does not have a retained earnings capacity to meet the income test of N.D.C.C. 65-05.1-01(6)(a)(3).
The purpose of partial disability benefits is to assist individuals who can be returned to substantial gainful employment through rehabilitation, but will experience a decrease in earnings capacity upon return to the workforce.
Partial disability benefits are for individuals who can return to substantial gainful employment, but at a lesser amount of income.

Bertsch v. Bertsch 2007 ND 168
Docket No.: 20070110
Filing Date: 10/19/2007
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: The law of the case doctrine applies only to issues decided by final judgments.
A district court has broad discretion regarding the scope of discovery.
A district court discovery order must be obeyed by the party to whom the order was issued. Failure to obey the order will result in a sanction, requiring the failing party to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified.

Kienzle v. Yantzer 2007 ND 167
Docket No.: 20060364
Filing Date: 10/19/2007
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: When a stipulation is incorporated into a judgment, the judgment is interpreted and enforced, not the underlying contract.
A district court's interpretation of its own judgment is entitled to deference when the language of the judgment is ambiguous.
A district court's decision whether to allow a custodial parent to relocate out of state with the child is a finding of fact, and will not be overturned on appeal unless clearly erroneous.

Interest of T. E. (Confidential) 2007 ND 166
Docket No.: 20070278
Filing Date: 10/16/2007
Case Type: Appeal - Civil - Mental Health
Author: Sandstrom, Dale

Highlight: A State Hospital patient can be subject to more than one 90-day forced medication order.
The refusal-of-medication requirement of N.D.C.C. § 25-03.1-18.1(1)(a)(2) can be met when a patient who is not literally refusing medication but is taking medication only because of a prior forced medication order indicates he would not take further medication unless ordered to do so by a court.

Sayler v. ND Dept. of Transportation 2007 ND 165
Docket No.: 20070101
Filing Date: 10/16/2007
Case Type: Appeal - Administrative - Department of Transportation
Author: Kapsner, Carol

Highlight: When an administrative order revoking a driver's license is appealed to the district court, the director or the hearing officer who rendered the decision must file a certified transcript of the testimony and all other proceedings within twenty days after receipt of the notice of appeal.
Probable cause to arrest a driver for driving under the influence exists if the police officer (1) observes some signs of physical or mental impairment, and (2) has reason to believe the driver's impairment is caused by alcohol.

State v. Barendt 2007 ND 164
Docket No.: 20060370
Filing Date: 10/16/2007
Case Type: Appeal - Criminal - Misc. Felony
Author: Kapsner, Carol

Highlight: A fact-finder decides the credibility of witnesses, and is not required to believe a witness's testimony, even when no direct evidence is offered to the contrary.

Ritter, Laber & Assoc., et al. v. Koch Oil, et al. (Cross w/20000224 & 20030347) 2007 ND 163
Docket No.: 20070029
Filing Date: 10/16/2007
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: VandeWalle, Gerald

Highlight: A party seeking reformation of a written agreement must prove by clear and convincing evidence the document does not fully or truly state the agreement the parties intended to make.
The party seeking reformation of an agreement on the basis of mutual mistake must show that, when the agreement was executed, both parties intended to say something different from what was said in the document.
In a class action lawsuit, the district court may award payment to the class representatives. Factors in making the decision include the risk to class representatives in bringing suit, the time and effort spent by the class representatives, the duration of the litigation, the time and effort expended by the representatives in pursuing the litigation, and the degree to which the class has benefitted from the representatives' actions.
The districtr court must consider the factors listed under N.D.R.Civ.P. 23(p)(5) in awarding attorney fees in a class action lawsuit.
The district court is considered an expert in determining an award of attorney fees, and its decision will not be overturned on appeal absent a clear abuse of discretion.
In awarding attorney fees in a class action lawsuit, the court may consider not only the available settlement fund but also the amount of actual claims on the fund.

State v. Fasteen 2007 ND 162
Docket No.: 20070046
Filing Date: 10/16/2007
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: VandeWalle, Gerald

Highlight: Under the Terry doctrine, a law enforcement officer can make an investigative stop of a vehicle if the officer has a reasonable and articulable suspicion that the motorist has violated or is violating the law.
Under N.D.C.C. 39-10-38(1), no person may turn a vehicle right or left upon a roadway without giving an appropriate signal and unless or until such movement can be made with reasonable safety.

State v. Hemmes (consolidated w/20070011) 2007 ND 161
Docket No.: 20070010
Filing Date: 10/16/2007
Case Type: Appeal - Criminal - Theft
Author: Crothers, Daniel John

Highlight: Brady v. Maryland, 373 U.S. 83 (1963) does not apply to probation revocation proceedings.
The evidentiary disclosure requirements of N.D.R.Crim.P. 16 apply to probation revocation proceedings.

State v. Skarsgard (Consolidated w/ 20060305) 2007 ND 160
Docket No.: 20060304
Filing Date: 10/16/2007
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Crothers, Daniel John

Highlight: A law enforcement officer may make an investigative stop of a vehicle if the officer has at least a reasonable suspicion that the motorist has violated the law or probable cause to believe the motorist has done so.
When a law enforcement officer observes a vehicle with no license plates and no viewable registration certificate, the officer has reasonable grounds to stop the driver and check if the driver has a valid certificate in his possession.
An adequate foundation for admission of blood-alcohol test results may be established by the testimony of witnesses.
A jury is generally presumed to follow instructions, and a curative instruction to disregard certain evidence is generally sufficient to remove improper prejudice.
Generally, pretrial bail issues are moot after conviction.
Reversal of a conviction and release from confinement is not a remedy for allegations of deliberate indifference to serious medical needs in violation of the cruel and unusual punishment clause of the Eighth Amendment.
Appellate review of a criminal sentence focuses only on whether the district court acted within the limits prescribed by statute, or substantially relied on an impermissible factor.

State v. Skarsgard 2007 ND 159
Docket No.: 20070034
Filing Date: 10/16/2007
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: VandeWalle, Gerald

Highlight: The criminal code definition of "offense" as "conduct for which a term of imprisonment or fine is authorized under statute after conviction" applies to driving violations under N.D.C.C. 39-08-01 and 39-06-42.
Judgments for driving under the influence and driving under suspension which are on appeal are "offenses" that can be used to enhance subsequent driving under the influence and driving under suspension judgments.

State v. Overby 2007 ND 158
Docket No.: 20070054
Filing Date: 10/16/2007
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: Findings of parole violations, revocation of parole and re-sentencing to an additional year of incarceration are summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

State v. Gruett 2007 ND 157
Docket No.: 20070039
Filing Date: 10/16/2007
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: Conviction for possession of methamphetamine with intent to deliver is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

State v. Moilwa 2007 ND 156
Docket No.: 20070058
Filing Date: 10/16/2007
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: A district court criminal judgment for criminal trespass is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

State v. Knight 2007 ND 155
Docket No.: 20070047
Filing Date: 10/16/2007
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: Conviction of gross sexual imposition is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (7).

State v. Johnson 2007 ND 154
Docket No.: 20060315
Filing Date: 10/16/2007
Case Type: Appeal - Criminal - Sexual Offense
Author: Per Curiam

Highlight: A criminal conviction for failure to register as a sex offender is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

State v. Tassler 2007 ND 153
Docket No.: 20070078
Filing Date: 10/16/2007
Case Type: Appeal - Criminal - Misc. Felony
Author:

Highlight: Revocation of probation and sentence is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

State v. Jager 2007 ND 152
Docket No.: 20070080
Filing Date: 10/16/2007
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Per Curiam

Highlight: Conviction for possession of drug paraphernalia is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Kram v. N.D. Department of Transportation 2007 ND 151
Docket No.: 20070102
Filing Date: 10/16/2007
Case Type: Appeal - Administrative - Department of Transportation
Author: Per Curiam

Highlight: An order suspending commercial driving privileges for one year is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

State v. Grzeskowiak (Consolidated w/20060355) 2007 ND 150
Docket No.: 20060354
Filing Date: 10/16/2007
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author:

Highlight: Orders deferring imposition of sentence for unlawful display of license plates and failure to transfer title of a vehicle are summarily affirmed under N.D.R.App.P. 35.1(a)(1) and (4).

Swenson v. Workforce Safety and Insurance Fund, et al. 2007 ND 149
Docket No.: 20070049
Filing Date: 9/5/2007
Case Type: Appeal - Administrative - Workers Compensation
Author: VandeWalle, Gerald

Highlight: A claimant must prove by objective medical evidence that he suffered a compensable injury. Objective medical evidence may include a physician's medical opinion based on an examination, a patient's medical history, and the physician's education and experience.
Although a medical opinion supported by a treatise or other scientific authority may be more persuasive, physicians are not required to offer such support.

State v. Newman 2007 ND 148
Docket No.: 20060294
Filing Date: 9/5/2007
Case Type: Appeal - Criminal - Homicide
Author: Crothers, Daniel John

Highlight: Persons accused of crimes have a constitutional right to a trial by an impartial jury.
An appellate court will not set aside a verdict merely on a whimsy or fanciful notion that prejudicial misconduct occurred.
A defendant on a criminal charge has a constitutional right to be present in the courtroom at every stage of the trial, but the right is not absolute and can be waived by the defendant.

Lee v. Lee 2007 ND 147
Docket No.: 20060321
Filing Date: 8/30/2007
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: A trial court has subject matter jurisdiction to order a party to pay spousal support beyond the party's original spousal support obligation, even when the original obligation has already ended, when reconsideration of an interrelated child support obligation could constitute a change in circumstances for purposes of the spousal support obligation.
A change in a child support obligation may constitute a material change in circumstances requiring reconsideration of an interrelated spousal support obligation.
Attorney's fees will not be awarded absent a showing of need or a showing that an appeal was frivolous.

State v. Tibor 2007 ND 146
Docket No.: 20060274
Filing Date: 8/30/2007
Case Type: Appeal - Criminal - Sexual Offense
Author: Kapsner, Carol

Highlight: A court does not abuse its discretion in allowing expert testimony about child sexual abuse accommodation syndrome if it finds the testimony may assist the jury in understanding the evidence or determine a fact in issue.
Mere repetition of a child's out-of-court statements does not make them unduly prejudicial.
A conviction rests upon insufficient evidence only when, after reviewing the evidence in the light most favorable to the prosecution and giving the prosecution the benefit of all inferences reasonably to be drawn in its favor, no rational fact-finder could find the defendant guilty beyond a reasonable doubt.

State v. Demars 2007 ND 145
Docket No.: 20070015
Filing Date: 8/30/2007
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Kapsner, Carol

Highlight: Denial of a motion to suppress evidence will not be reversed if there is sufficient competent evidence capable of supporting the court's findings, and if its decision is not contrary to the manifest weight of the evidence.

Peterson, et al. v. Dakota Molding, Inc., et al. 2007 ND 144
Docket No.: 20060356
Filing Date: 8/30/2007
Case Type: Appeal - Civil - Contracts
Author: Maring, Mary

Highlight: In a garnishment proceeding, where a garnishee denies liability, the plaintiff may move the court for leave to file a supplemental complaint making the garnishee a party to the action, and setting forth the facts upon which the plaintiff claims to charge the garnishee. If probable cause is shown, the motion shall be granted.
The question whether probable cause has been shown, so as to require leave to file a supplemental complaint making a garnishee a party to an action, depends on whether the evidence shows probable grounds for believing that the garnishee might be held liable.
A term in an insurance policy should be construed to mean what a reasonable person in the position of the insured would think it meant. Limitations or exclusions from broad coverage must be clear and explicit. When the language of an insurance policy is clear and explicit, the language should not be strained in order to impose liability on the insurer.

State v. Kunze 2007 ND 143
Docket No.: 20060377
Filing Date: 8/30/2007
Case Type: Appeal - Criminal - Misc. Felony
Author: VandeWalle, Gerald

Highlight: When a trial court concludes it is necessary to physically restrain a defendant at trial in front of the jury, the court must consider less restrictive, less prejudicial methods of restraint.
To provide for meaningful appellate review, a trial court must articulate its reasons for placing the defendant in physical restraints on the record, including a discussion of less prejudicial alternatives.

Tedford v. Workforce Safety and Insurance, et al. 2007 ND 142
Docket No.: 20060320
Filing Date: 8/27/2007
Case Type: Appeal - Administrative - Workers Compensation
Author: VandeWalle, Gerald

Highlight: The retirement offset provision, N.D.C.C. 65-05-09.2, authorizing offset of social security retirement benefits against workers compensation disability benefits, does not apply to injured employees who were receiving benefits for a total disability prior to the statute's effective date.
In determining whether an administrative agency acted without substantial justification, triggering an award of actual attorney fees and costs under N.D.C.C. 28-32-50(1), the fact that a judge at an earlier stage of the proceedings agreed with the agency's position is persuasive evidence that the position was substantially justified.

Superior, Inc. v. Behlen Mfg. 2007 ND 141
Docket No.: 20060308
Filing Date: 8/24/2007
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: A contractual right to indemnification may be implied based on the special nature of the relationship between the parties, or when there are unique factors demonstrating that the parties intended the would-be indemnitor to bear the ultimate responsibility for a certain matter.
Implied contractual indemnity is an equitable remedy that is available only if a party does not have an adequate remedy at law.
Under the Uniform Commercial Code, a buyer may seek consequential damages from the seller when it incurs liability to a third party as a result of the use or resale of the seller's product.

J.P. v. Stark Co. Social Services, et al. 2007 ND 140
Docket No.: 20070004
Filing Date: 8/22/2007
Case Type: Appeal - Civil - Administrative Proceeding
Author: Sandstrom, Dale

Highlight: When a medicaid recipient receives out-of-state medical care without prior approval when there is no emergency, payment may be covered only if there was good cause for not first securing approval, the care and services were not available in state, and the care and services were medically necessary.

Graner v. Graner 2007 ND 139
Docket No.: 20060359
Filing Date: 8/22/2007
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: A district court's decision on a custodial parent's motion to relocate out-of-state will be reversed on appeal only if it is clearly erroneous.
Increased visitation expenses and distance are not a sufficient basis to deny a custodial parent's motion to relocate.
A court may not modify custody within two years of an order establishing custody, unless the court finds the modification is in the child's best interests and there is willful denial of visitation, the child's environment endangers the child's physical or emotional health or impairs the child's emotional development, or the noncustodial parent has had primary physical care of the child for longer than six months.

State v. Washington 2007 ND 138
Docket No.: 20060369
Filing Date: 8/22/2007
Case Type: Appeal - Criminal - Theft
Author: VandeWalle, Gerald

Highlight: The probable cause standard is the same for both searches and arrests.
Once a vehicle has been validly stopped and its occupants lawfully detained, law enforcement officers may constitutionally order the driver and passengers out of the vehicle, even in situations not amounting to arrest.
Law enforcement officers have the right to use appropriate forcible means to effectuate an arrest.
An officer's subjective intent plays no role in ordinary probable cause Fourth Amendment analysis.

City of Fargo v. Malme, et al. 2007 ND 137
Docket No.: 20070043
Filing Date: 8/22/2007
Case Type: Appeal - Civil - Administrative Proceeding
Author: Crothers, Daniel John

Highlight: Cities are creatures of statute and possess only those powers and authorities granted by statute or necessarily implied from an express statutory grant.
Home rule charters allow cities to enact laws contrary to those of the state.
The supersession provision in N.D.C.C. 40-05.1-05 applies only to those powers enumerated in N.D.C.C. 40-05.1-06, and those powers must also be included in the home rule charter and be implemented by ordinance.
The rule of strict construction applies in defining municipal powers, and any doubt as to the existence or extent of municipal powers must be resolved against the municipality.

Stephenson v. Hoeven, et al. 2007 ND 136
Docket No.: 20070055
Filing Date: 8/22/2007
Case Type: Appeal - Civil - Administrative Proceeding
Author: Maring, Mary

Highlight: Statutes are construed as a whole to give meaning, if possible, to every word, phrase, and sentence.
An administrative agency may adopt specific rules of procedure when necessary to comply with requirements outside the administrative agencies practice act or when necessary to comply with the requirements of federal law.

Farmers Union Mut. Ins. Co. v. Assoc. Electric and Gas Ins. Services Ltd. 2007 ND 135
Docket No.: 20060303
Filing Date: 8/22/2007
Case Type: Appeal - Civil - Insurance
Author: Crothers, Daniel John

Highlight: Statutory interpretation is a question of law and fully reviewable on appeal.
Words in a statute are given their plain, ordinary, and commonly understood meaning, unless defined by statute or unless a contrary intention plainly appears.
Statutes are construed as a whole and are harmonized to give meaning to related provisions.
If the language of a statute is clear and unambiguous, the letter of the statute cannot be disregarded under the pretext of pursuing its spirit.
Under N.D.C.C. 26.1-41-17, which permits a basic no-fault insurer to seek equitable allocation and intercompany arbitration for no-fault benefits paid, "the motor vehicle liability insurer of a secured person" does not include an excess liability insurer.

Burns v. Burns 2007 ND 134
Docket No.: 20060218
Filing Date: 8/22/2007
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: A continuance is the proper remedy for a party claiming surprise, and a judgment will not ordinarily be reversed on appeal for surprise when no request is made for a continuance at the time and there is no showing of inability to meet the situation.
If evidence of domestic violence does not rise to the level to trigger the presumption against an award of custody, the court may still consider the evidence as one of the best interest factors.
A district court's concerns about maintaining the custodial relationship that existed prior to the divorce and allowing the child to attend the same school and live in the same house are all valid considerations under N.D.C.C. 14-09-06.2(1)(d).
Being a child's primary caretaker does not guaranty a custody award in a divorce action.

State v. Kautzman 2007 ND 133
Docket No.: 20060329
Filing Date: 8/22/2007
Case Type: Appeal - Criminal - Sexual Offense
Author: Maring, Mary

Highlight: A mistrial must be declared before the trial is over and before the jury has been discharged. When defense counsel moves for a mistrial, an instruction to the jury must be requested to properly preserve the question for appellate review.
A judgment of acquittal may be entered only if the evidence is insufficient to sustain a conviction.
For an offense to be a lesser included offense, it must be impossible to commit the greater offense without committing the lesser.
If counsel does not object to the trial court's instructions, the issue is not adequately preserved and inquiry on appeal is limited to whether the court's failure to instruct the jury was obvious error affecting substantial rights.
A party may not challenge as error a ruling or other trial proceeding invited by that party.
A trial court has broad discretion when deciding evidentiary matters, and its admission or exclusion of evidence will not be overturned on appeal unless that discretion has been abused.

State v. Muhle (Cross-reference w/20060340) 2007 ND 132
Docket No.: 20060328
Filing Date: 8/22/2007
Case Type: Appeal - Criminal - Sexual Offense
Author: VandeWalle, Gerald

Highlight: A district court's evidentiary ruling is reviewed for an abuse of discretion.
Out-of-court testimonial statements may not be admitted into evidence when the child is unavailable to testify unless the defendant has had an opportunity to cross-examine the child. If a defendant has an opportunity to cross-examine the witness at trial, the admission of testimonial statements would not violate the Confrontation Clause.
Rule 16 of the North Dakota Rules of Criminal Procedure requires only "statements" be disclosed by the prosecution. "Statement" is defined technically and emphasizes formal, written, or recorded declarations.
To establish a violation under Brady v. Maryland, the defendant must prove: (1) the government possessed evidence favorable to the defendant; (2) the defendant did not possess the evidence and could not have obtained it with reasonable diligence; (3) the prosecution suppressed the evidence; and (4) a reasonable probability exists that the outcome of the proceedings would have been different if the evidence had been disclosed.
A conviction on the ground of insufficient evidence will be reversed only if, after viewing the evidence and all reasonable inferences in the light most favorable to the verdict, no rational factfinder could have found the defendant guilty beyond a reasonable doubt.

State v. Muhle (Cross-reference w/20060328) 2007 ND 131
Docket No.: 20060340
Filing Date: 8/22/2007
Case Type: Appeal - Criminal - Misc. Felony
Author: Sandstrom, Dale

Highlight: A court's evaluation of the trustworthiness of a child's out-of-court statement about alleged sexual abuse, may include these non-exclusive factors: (1) the spontaneity and consistent repetition of the statements, (2) the mental state of the declarant, (3) the use of terminology unexpected of a child of similar age, and (4) a lack of motive to fabricate.
If a defendant has an opportunity to cross-examine a witness at trial, the admission of testimonial statements would not violate the Confrontation Clause.
The proper remedy for unfair surprise is a continuance, but one must be requested.
The term "statement," as used in N.D.R.Crim.P. 16(f), means a written or otherwise recorded statement made by the witness, codefendant, or other person.

Estate of Allmaras 2007 ND 130
Docket No.: 20060380
Filing Date: 8/22/2007
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: VandeWalle, Gerald

Highlight: A conservator has discretionary authority to manage the protected person's estate, subject to the conservator's fiduciary responsibilities and taking into account any known estate plan of the protected person.
A payable-on-death beneficiary has no present interest in the account, no right to prevent the depositor from removing the account funds and effectively destroying the beneficiary designation, and no right to preclude the depositor from changing or removing the beneficiaries on the account.

Disciplinary Board v. Light 2007 ND 129
Docket No.: 20070226
Filing Date: 8/16/2007
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Interim suspension of lawyer ordered.

Capital Electric Coop., Inc. v. City of Bismarck, et al. (cons w/20060270) 2007 ND 128
Docket No.: 20060199
Filing Date: 7/27/2007
Case Type: Appeal - Civil - Administrative Proceeding
Author: Sandstrom, Dale

Highlight: If a municipality has enacted an ordinance that requires electric suppliers to have a franchise, a rural electric cooperative must have a franchise to provide electric service within the municipality.
A franchise is a contract and is interpreted under rules for interpretation of a contract. Contracts are construed to give effect to the parties' mutual intention at the time of contracting, and the parties' practical interpretation of a franchise is entitled to some influence.

Home of Economy v. Burlington Northern 2007 ND 127
Docket No.: 20070002
Filing Date: 7/27/2007
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: North Dakota law does not preclude an action for a prescriptive easement for a public road across a railroad line.
A party asserting the existence of a public road by prescription has the burden of establishing by clear and convincing evidence the general, continuous, uninterrupted, and adverse use of a road by the public under a claim of right for 20 years.
Adverse and hostile use is ordinarily a question of fact.

State v. Vantreece 2007 ND 126
Docket No.: 20060139
Filing Date: 7/25/2007
Case Type: Appeal - Criminal - Sexual Offense
Author: VandeWalle, Gerald

Highlight: Under N.D.C.C. 12.1-20-03(1)(a), the State must prove beyond a reasonable doubt the defendant, by force or threat of death or serious harm, compelled the victim to submit to a sexual act.
In a criminal case charging the defendant with having sex by force, the complainant's mental capacity is relevant to the question of the extent of force required to compel the victim to submit.

State v. Gaede 2007 ND 125
Docket No.: 20060188
Filing Date: 7/25/2007
Case Type: Appeal - Criminal - Homicide
Author: Sandstrom, Dale

Highlight: A defendant may not be convicted upon the testimony of an accomplice unless the accomplice's testimony is corroborated by other evidence tending to connect the defendant with the commission of the crime.
Testimony or argument about a defendant's post-arrest silence may constitute an improper comment about the defendant's invocation of the right to remain silent.
Evidence of prior bad acts or convictions is not admissible to prove a defendant's character in order to show action in conformity therewith, but may be admissible for other purposes, such as motive, intent, preparation, or plan.
Prior-bad-act evidence may be admissible to provide a more complete story of a crime by putting the crime in context of happenings near in time and place.