Opinions

State v. Thill 2005 ND 13
Docket No.: 20040074
Filing Date: 1/19/2005
Case Type: Appeal - Criminal - Sexual Offense
Author: Neumann, William

Highlight: When the State fails to preserve evidence that is neither clearly exculpatory or inculpatory, a defendant must prove the State acted in bad faith to constitute a denial of due process.
Jurors are presumed to follow the trial court's jury instructions.

City of Bismarck v. Bosch 2005 ND 12
Docket No.: 20040157
Filing Date: 1/19/2005
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: VandeWalle, Gerald

Highlight: For a filed document or process to be a necessary part of the approved method for conducting an Intoxilyzer test, the State Toxicologist must expressly include it in the approved method and make it a part of the requirement for fair administration.
Proof that the standard solution used for Intoxilyzer tests has not been used more than 50 times is not part of the approved method.

State v. Nelson 2005 ND 11
Docket No.: 20040084
Filing Date: 1/19/2005
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Neumann, William

Highlight: The emergency exception to the warrant requirement may apply even when officers are already legitimately inside a residence when an emergency occurs.
Consent to search must be proven by affirmative conduct. Merely taking no action to stop officers from searching is not enough to prove conduct consistent with giving consent.
For probable cause to issue a search warrant, the magistrate must be provided with a factual basis for the affiant's assumptions. Mere speculation and conclusory statements are not enough.
During the execution of a search warrant, the presence of a third party not actually participating in the search does not necessitate suppression of the evidence discovered.

Ziegler, et al. v. Dahl, et al. 2005 ND 10
Docket No.: 20040146
Filing Date: 1/19/2005
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: Even if a factual dispute exists, summary judgment is proper if the law is such that resolution of the factual dispute will not change the result.
The existence of a partnership is a mixed question of law and fact, and the ultimate determination of whether a partnership exists is a question of law.
For a partnership, the intent element focuses not on whether individuals subjectively intended to form a partnership, but on whether the individuals intended to jointly carry on a business for profit.
Under the co-ownership requirement for a partnership, a person does not need to actually control the business so long as the person has the right to exercise control in the management of the business.

Schmidt v. Bakke 2005 ND 9
Docket No.: 20030377
Filing Date: 1/19/2005
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: Waiver of an objection to the timeliness of a motion precludes the objection from being raised at a later date.
The effect of the separation of siblings is a consideration in the trial court's analysis of the best interests of the child and whether to grant a motion to relocate a child out of this state.
An offer of proof is needed for review of a court's exclusion of evidence. Without an offer of proof, a determination of whether the exclusion of testimony was prejudicial cannot be made. Failure to make an offer of proof may be excused if the question was in proper form on its face and was so framed as to clearly admit an answer favorable to the claim or defense of the party producing it.

Johnson v. State 2005 ND 8
Docket No.: 20040203
Filing Date: 1/19/2005
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

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

Cole v. Cole 2005 ND 7
Docket No.: 20040271
Filing Date: 1/19/2005
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: An order denying a motion to vacate the judgment entered in a divorce action is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

State v. Mooney (Consolidated w/ 20040181 & 20040182) 2005 ND 6
Docket No.: 20040180
Filing Date: 1/19/2005
Case Type: Appeal - Criminal - Other
Author: Per Curiam

Highlight: Three criminal judgments are summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Miller v. Sprynczynatyk 2005 ND 5
Docket No.: 20040273
Filing Date: 1/19/2005
Case Type: Appeal - Administrative - Department of Transportation
Author: Per Curiam

Highlight: A judgment affirming an administrative agency decision suspending driving privileges is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Pautz v. N.B., et al. (CONFIDENTIAL) 2005 ND 4
Docket No.: 20040229
Filing Date: 1/19/2005
Case Type: Appeal - Civil - Juvenile Law
Author: Per Curiam

Highlight: An order finding a child unruly is summarily affirmed under N.D.R.App.P. 35.1(a)(1).