Opinions

Kamara v. State 2003 ND 179
Docket No.: 20030180
Filing Date: 12/2/2003
Case Type: Appeal - Civil - Post-Conviction Relief
Author: VandeWalle, Gerald

Highlight: To establish ineffective assistance of counsel, a person must show counsel's performance fell below an objective standard of reasonableness and the deficient performance prejudiced him.
The standard of review for a claim of ineffective assistance of counsel is a mixed question of law and fact, but the trial court's findings of fact are subject to a clearly erroneous standard of review.
The credibility of witnesses is left to the trial court to determine.

Negaard v. Negaard (cross-ref. w/20010251) 2003 ND 178
Docket No.: 20030174
Filing Date: 12/2/2003
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: Post-judgment divorce order granting costs and attorney's fees summarily affirmed under N.D.R.App.P. 35.1(a)(4), (7).

Elshaug v. Workforce Safety and Insurance, et al. (cross-reference 990286) 2003 ND 177
Docket No.: 20030100
Filing Date: 11/18/2003
Case Type: Appeal - Administrative - Workers Compensation
Author: VandeWalle, Gerald

Highlight: A claimant has the burden of proving a right to receive workers compensation benefits or to continued benefits if they are terminated after liability for a claim has been accepted.
A claimant must establish by a preponderance of the evidence that the medical condition for which benefits are sought is causally related to a work injury.

Knodel v. Knodel 2003 ND 176
Docket No.: 20030143
Filing Date: 11/18/2003
Case Type: Appeal - Civil - Divorce - Property
Author: Per Curiam

Highlight: Divorce judgment summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Hanson v. Director, N.D. Dept. of Trans. 2003 ND 175
Docket No.: 20030136
Filing Date: 11/17/2003
Case Type: Appeal - Administrative - Department of Transportation
Author: Sandstrom, Dale

Highlight: Weaving twice onto the lane-dividing line on an interstate highway, even without erratic movement or sharp veering, can be sufficient to stop a vehicle.
A vehicle weaving within its own lane may be enough to justify the stop of a vehicle.
Although reasonable suspicion to stop a vehicle requires more than a "mere hunch," this standard does not require an officer to see a motorist violate a traffic law.
The totality of circumstances is considered when determining whether reasonable suspicion exists to stop a vehicle.

State v. Beciraj (see Docket Memo) 2003 ND 173
Docket No.: 20030035
Filing Date: 11/13/2003
Case Type: Appeal - Criminal - Arson
Author: Sandstrom, Dale

Highlight: The crime of conspiracy is limited to agreements to engage in a crime or crimes that are defined elsewhere.
Conspiracy does not require that an offense actually be committed as long as there is an agreement and an overt act to effect an objective of the conspiracy.
The act for the purpose of conspiracy can range from an act that would be innocent in the absence of a conspiracy to the actual commission of the offense agreed upon.
Conspiracy to commit arson by damaging or destroying one's own property for the purpose of collecting insurance on the loss, may occur even when, unknown to the conspirators, the insurance has lapsed.
Evidence of a prior home fire may be properly admitted if its probative value outweighs any danger of unfair prejudice and the evidence is not used to prove character but is used to show a plan for committing arson for the purpose of collecting insurance.

Litoff v. Pinter 2003 ND 172
Docket No.: 20030074
Filing Date: 11/13/2003
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: Although visitation between a child and the noncustodial parent is ordinarily presumed to be in the best interest of the child, visitation may be curtailed or eliminated entirely if it is likely to endanger the child's physical or emotional health.

State v. Beciraj (see Docket Memo) 2003 ND 171
Docket No.: 20030030
Filing Date: 11/13/2003
Case Type: Appeal - Criminal - Arson
Author: Maring, Mary

Highlight: Obvious errors affecting substantial rights may be addressed on appeal even if the error was not brought to the attention of the trial court.
Obvious error requires an appellant must establish (1) an error, (2) that is plain, which (3) affects substantial rights.
N.D.R.Ev. 404(b) prohibits the use of character evidence except for certain purposes.

Disciplinary Board v. McKechnie (Cross-reference w/ 20020199) 2003 ND 170
Docket No.: 20030153
Filing Date: 11/13/2003
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: An attorney is appropriately suspended from the practice of law when this Court finds clear and convincing evidence of an ethical violation.
An attorney's disciplinary record is properly considered as an aggravating factor when it has been determined an attorney violated an ethical duty.

Akerlind v. Buck, et al. 2003 ND 169
Docket No.: 20030139
Filing Date: 11/13/2003
Case Type: Appeal - Civil - Contracts
Author: Kapsner, Carol

Highlight: The credibility of witnesses, including expert witnesses, and the weight to be given their testimony, are questions for the trier of fact.
A partnership agreement controls whether partners are entitled to compensation for services provided to the partnership.
A partner breaches a fiduciary duty if the partner fails to keep fiduciary property separate and distinct and uses partnership property for the partner's personal benefit.
Whether a person has breached a fiduciary duty is a finding of fact.