Opinions

State v. Johnson 2009 ND 167
Docket No.: 20090115
Filing Date: 9/16/2009
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: VandeWalle, Gerald

Highlight: If a person ambiguously responds to a request to submit to a chemical test, the person suffers the consequences of that ambiguity.
An affirmative refusal to submit to a chemical test must be clear and unequivocal.

Kambeitz, et al. v. Acuity Ins. Co. 2009 ND 166
Docket No.: 20090059
Filing Date: 9/16/2009
Case Type: Appeal - Civil - Insurance
Author: Maring, Mary

Highlight: Although the failure to plead an affirmative defense generally results in waiver of the defense, amendments to the pleadings are to be freely given when justice so requires.
An insurance company cannot avoid coverage under any compulsory automobile liability insurance policy provisions after an accident when a claim against the policy is made by an injured innocent third party.
Fraud, intentional and material misrepresentation, concealment, and collusion are all generally questions of fact for the trier of fact.

State v. Vandehoven 2009 ND 165
Docket No.: 20080308
Filing Date: 9/16/2009
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Maring, Mary

Highlight: The purpose of N.D.R.Crim.P. 11(b)(1) is to ensure the defendant understands the constitutional rights which are waived by entry of a guilty plea, to ensure a knowing and intelligent waiver of the right to counsel, and to ensure the defendant understands the maximum possible punishment and any applicable mandatory minimum punishment so he can make a knowing and intelligent decision whether to plead guilty.
If no plea agreement has been reached by the parties, N.D.R.Crim.P. 11(c)(1) creates a bright-line rule which prohibits the court from participating in any discussion of a plea agreement.

Tweeten v. Tweeten 2009 ND 164
Docket No.: 20090033
Filing Date: 9/16/2009
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: A husband and wife's decision to transfer separately owned property to themselves, as husband and wife, as joint tenants is a significant legal act, which may make a premarital agreement governing the distribution of that property inapplicable.

State v. Schmeets 2009 ND 163
Docket No.: 20080225
Filing Date: 9/16/2009
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Kapsner, Carol

Highlight: To admit evidence of a defendant's prior convictions to establish an object is drug paraphernalia, a court must balance whether the probative value of the evidence outweighs the unfair prejudice to the defendant.

Wells Fargo Bank v. Horob, et al. 2009 ND 161
Docket No.: 20090066
Filing Date: 9/16/2009
Case Type: Appeal - Civil - Other
Author:

Highlight: District court order declaring a default judgment entered by a Nebraska court is entitled to full faith and credit and enforceable in this state is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Interest of S.Z. (Confidential) 2009 ND 160
Docket No.: 20090252
Filing Date: 9/16/2009
Case Type: Appeal - Civil - Mental Health
Author: Per Curiam

Highlight: Orders requiring treatment and medication at the North Dakota State Hospital summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Matter of Hicks 2009 ND 159
Docket No.: 20090058
Filing Date: 9/16/2009
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Per Curiam

Highlight: Civil commitment of a sexually dangerous person summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Disciplinary Board v. Fisher (Cross-ref. w/ 20070343, 20070344, & 20080198) 2009 ND 158
Docket No.: 20090165
Filing Date: 9/4/2009
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Suspension of lawyer ordered.

Industrial Contractors, Inc. v. Workforce Safety & Insurance, et al. 2009 ND 157
Docket No.: 20080275
Filing Date: 9/4/2009
Case Type: Appeal - Administrative - Workers Compensation
Author: Maring, Mary

Highlight: Courts exercise limited review in appeals from administrative agency decisions under the Administrative Agencies Practice Act.
An administrative agency's construction of a statute in administering the law is entitled to deference when that interpretation does not contradict clear and unambiguous statutory language.
The word "or" is disjunctive in nature and ordinarily indicates an alternative between different things or actions, and terms or phrases separated by "or" have separate and independent significance.
Failure of participating employer to give written notice or to properly post notice as required under the relevant statute invalidates the employer's designated medical provider selection and allows the employee to make the initial selection of a medical provider.

State v. Boyle 2009 ND 156
Docket No.: 20090020
Filing Date: 8/27/2009
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Maring, Mary

Highlight: A restraining order may restrict an individual's constitutional rights, including restricting the right to certain communication or to be in certain places.
The evidence is insufficient to support a criminal conviction when no rational factfinder, viewing all the evidence in the light most favorable to the verdict, could have found the defendant guilty beyond a reasonable doubt.

Frueh v. Frueh 2009 ND 155
Docket No.: 20080231
Filing Date: 8/27/2009
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

Highlight: A court may modify a prior custody order two years after a prior order establishing custody is entered, if there has been a material change in circumstances and the modification is in the child's best interests.
When applying the best interest factors to decide whether modifying custody is in a child's best interests, it is improper for the court to consider the amount of a parent's child support obligation when the support amount was calculated using the child support guidelines.
A mature child's preference may be a significant factor in deciding whether a custody modification is necessary to serve a child's best interests.
District courts have discretion regarding the examination of witnesses, including child witnesses in custody proceedings.

Pearson v. Pearson 2009 ND 154
Docket No.: 20080299
Filing Date: 8/18/2009
Case Type: Appeal - Civil - Divorce - Property
Author: Crothers, Daniel John

Highlight: An award of spousal support is finding of fact which will not be set aside on appeal unless clearly erroneous.
We will not set aside the trial court's determinations on property division or spousal support for failure to explicitly state the basis for its findings if that basis is reasonably discernable by deduction or inference.
We remand for further proceedings when permanent spousal support is requested but not awarded and the district court does not articulate why an award was not made.

Beeter, et al. v. Sawyer Disposal 2009 ND 153
Docket No.: 20080346
Filing Date: 8/18/2009
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: If a covenant contained in a deed does not directly benefit the land, the covenant is personal and does not run with the land.
A covenant to pay for land in a certain way is generally a personal covenant and does not run with the land.
The parties' intent, no matter how clearly expressed, cannot make a personal covenant run with the land and bind subsequent purchasers.

Matter of Vantreece (Cross-Ref. w/20080004) 2009 ND 152
Docket No.: 20090040
Filing Date: 8/18/2009
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Crothers, Daniel John

Highlight: Expert testimony explicitly opining that an alleged sexually dangerous individual has serious difficultly controlling his or her behavior is not necessary to commit a person as a sexually dangerous individual.
A person may be committed as a sexually dangerous individual if there is proof of difficulty in controlling behavior by expert evidence in the record from which the district court can conclude the individual has serious difficulty in controlling his or her behavior.

State v. Procive 2009 ND 151
Docket No.: 20080269
Filing Date: 8/18/2009
Case Type: Appeal - Criminal - Assault
Author: Sandstrom, Dale

Highlight: Under N.D.R.Ev. 401, 402, and 403, a district court has broad discretion in admitting or excluding evidence.
Under N.D.R.Ev. 403, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
The power to exclude evidence under N.D.R.Ev. 403 should be sparingly exercised, and prejudice due to the probative force of evidence is not unfair prejudice.
Under N.D.R.Ev. 801(d)(2), a statement made by one party that is offered against the party by the opponent is admissible, substantive, and non-hearsay evidence.

State v. Brown 2009 ND 150
Docket No.: 20080257
Filing Date: 8/18/2009
Case Type: Appeal - Criminal - Violation of City Ordinance
Author: Kapsner, Carol

Highlight: The legislature may delegate legislative powers, including the authority to create criminal penalties for violations of county ordinances, to a home rule county.
The provision in N.D.C.C. 11-09.1-05(5) limiting a home rule county's authority to regulate any industry or activity already regulated by state law applies only when there is an explicit state law or rule restraining the county's authority or when the industry or activity involved is already subject to substantial state control through broad, encompassing statutes or rules.
A county ordinance declaring that a dog that barks in an excessive or continuous manner is a public nuisance and that a person who owns or harbors the dog is guilty of an infraction does not reach a substantial amount of constitutionally protected conduct and is not unconstitutionally overbroad.
An ordinance declaring that a dog that barks in an excessive or continuous manner is a public nuisance is not unconstitutionally vague.
Under N.D. Const. art. VI, sec. 3, a procedural rule adopted by the Supreme Court must prevail in a conflict with a statutory procedural rule.
The signature of the prosecuting attorney on an information is not required to be sworn to upon oath.
A defendant charged with an infraction for violating a county ordinance, with a maximum penalty of a fifty-dollar fine with no possibility of imprisonment, does not have a constitutional right to a jury trial under N.D. Const. art. I, sec. 13.

Tarnavsky v. Rankin 2009 ND 149
Docket No.: 20090085
Filing Date: 8/18/2009
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Kapsner, Carol

Highlight: A party resisting a motion for summary judgment must present competent admissible evidence to establish a genuine issue of material fact on the party's claims.
A party resisting a summary judgment motion must explain the connection between factual assertions and legal theories in the case and cannot leave to the court the chore of divining what facts are relevant or why facts are relevant let alone material to a claim for relief.

Abdullah v. State, et al. 2009 ND 148
Docket No.: 20080254
Filing Date: 7/29/2009
Case Type: Appeal - Civil - Other
Author: Maring, Mary

Highlight: A public educational institution's decision whether to dismiss a student for academic reasons is entitled to deference.
Tort of unlawful interference with a business relationship requires an independently tortious or otherwise unlawful act of interference by the interferer.
A state employee may not be held liable for claims based upon a discretionary function, regardless of whether the discretion is abused, and a state employee cannot be held liable for a decision resulting from a quasi-judicial act.
A student does not have a substantive due process right to graduate from a public school.
A party resisting a motion for summary judgment must explain the connection between factual assertions and legal theories and cannot leave to the court the chore of divining what facts are relevant or why facts are relevant, let alone material, to a claim for relief.

State v. Sorenson (Consolidated w/20080134) 2009 ND 147
Docket No.: 20080132
Filing Date: 7/21/2009
Case Type: Appeal - Criminal - Homicide
Author: Crothers, Daniel John

Highlight: Statements made during a jail phone call to friends and relatives are not testimonial statements, and Sixth Amendment confrontation rights do not apply.
Extreme emotional disturbance is a mitigating circumstance and not a defense to the crime of murder.
A warrantless trash search violates an individual's Fourth Amendment rights if there is a subjective expectation of privacy in the trash that society accepts as objectively reasonable.
An individual is denied due process when defects in procedure might lead to a denial of justice.
Insufficient evidence to support a conviction exists only when, after reviewing the evidence in the light most favorable to the verdict and giving the benefit of all inferences reasonably to be drawn in favor of the verdict, no rational fact finder could find the defendant guilty beyond a reasonable doubt.

State v. Beane (Consolidated w/20090012 - 20090015) 2009 ND 146
Docket No.: 20090011
Filing Date: 7/21/2009
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Sandstrom, Dale

Highlight: The Fourth Amendment is not implicated by police entry upon private land to knock on a citizen's door for legitimate police purposes unconnected with a search of the premises.
Placing a suspect in handcuffs before conducting a pat-down search for weapons is constitutionally permissible when the action is based on officer safety.
When an outside clothing pat-down search reveals the presence of an object of a size and density that reasonably suggests the object might be a weapon, the searching officer is entitled to continue the search to the inner garments where the object is located in order to determine whether the object is, in fact, a weapon.
Generally, when an object recovered from a suspect during a pat-down search is a closed container, the officer may not open the container to examine its contents unless the officer can point to specific and articulable facts supporting a reasonable suspicion that the closed container poses a danger to the officer or others nearby.

Schaaf v. N.D. Department of Transportation 2009 ND 145
Docket No.: 20090025
Filing Date: 7/21/2009
Case Type: Appeal - Administrative - Department of Transportation
Author: Sandstrom, Dale

Highlight: If a general provision in a statute is in conflict with a special provision in the same or in another statute, the two must be construed, if possible, so that effect may be given to both provisions, but if the conflict between the two provisions is irreconcilable, the special provision must be construed to control over the general provision.
Due process requires notice and an opportunity for a hearing appropriate to the case.

State v. Blurton 2009 ND 144
Docket No.: 20090009
Filing Date: 7/21/2009
Case Type: Appeal - Criminal - Sexual Offense
Author: Kapsner, Carol

Highlight: A guilty plea must be knowingly, intelligently, and voluntarily made to be valid.
Any error that does not affect a defendant's substantial rights is harmless and must be disregarded.
Generally, ineffective assistance of counsel claims should be raised in a post-conviction proceeding to allow the parties to fully develop a record of counsel's performance and its impact on the defendant.

State v. Demarais (Consolidated w/20080182) 2009 ND 143
Docket No.: 20080181
Filing Date: 7/21/2009
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Crothers, Daniel John

Highlight: A jury may find a defendant guilty even though evidence exists which, if believed, could lead to a not guilty verdict.
In nearly all possession of drug paraphernalia cases, the State will be forced to prove by circumstantial evidence the intent to use the paraphernalia for the purpose of ingesting, preparing, or storing a controlled substance.
A verdict based upon circumstantial evidence carries the same presumption of correctness as other verdicts.

Shull v. Walcker, et al. 2009 ND 142
Docket No.: 20090021
Filing Date: 7/21/2009
Case Type: Appeal - Civil - Constitutional Law
Author: VandeWalle, Gerald

Highlight: A motion for relief from judgment should not be used to relieve a party from free, calculated and deliberate choices he or she has made, and relief should be granted only in exceptional circumstances.
The failure of a condition precedent is an affirmative defense which must be pled in the answer to a filed complaint.
The decision of a respondent to not answer a complaint, to not file a response to a motion for default judgment, and to disregard the court's recommendations that he seek counsel until after default judgment has been entered against him does not constitute exceptional circumstances to justify relief under N.D.R.Civ.P. 60(b).
Whether an earnest money clause in a purchase agreement limits a seller's remedies to the earnest money itself is a matter of contractual interpretation.

State v. Myers (Consolidated w/20090004) 2009 ND 141
Docket No.: 20080104
Filing Date: 7/21/2009
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Crothers, Daniel John

Highlight: When a problem arises during a trial, the party affected must bring the irregularity to the court's attention and seek appropriate remedial action.
If juror misconduct is noticed and the criminal defendant does not object or request a mistrial, reversal requires obvious error.
Because the court took steps to ensure the defendant had a fair trial, the defendant's right to a fair trial was not violated and obvious error did not exist when a juror allegedly slept during the arresting officer's testimony.
If it is easier to dispose of an ineffective assistance of counsel claim on the ground of lack of sufficient prejudice, that course should be followed.

Grager v. Schudar, et al. 2009 ND 140
Docket No.: 20080302
Filing Date: 7/21/2009
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Kapsner, Carol

Highlight: An appellant assumes the consequences and the risks for failing to provide a complete transcript of proceedings in the trial court, and if the record on appeal does not provide for a meaningful and intelligent review of an issue, the supreme court may decline to review the issue.
On appeal, jury instructions must be viewed as a whole, and if they correctly advise the jury of the law, they are sufficient although parts of them, standing alone, may be erroneous and insufficient.
Generally, one who consents to conduct that would otherwise be an intentional tort cannot recover damages for that conduct.
An adult prisoner's apparent consent to sexual conduct with a jailer imposes neither absolute liability on the jailer nor a complete bar to recovery in the prisoner's civil action premised upon the sexual conduct.

Schweitzer v. Job Service ND, et al. 2009 ND 139
Docket No.: 20080341
Filing Date: 7/21/2009
Case Type: Appeal - Administrative - Unemployment/Job Service
Author: Crothers, Daniel John

Highlight: A person may not receive unemployment benefits if the person was discharged from employment for misconduct.
One incident of bad judgment can be disqualifying misconduct if it results in a violation of an important employer interest.

State v. Bornhoeft 2009 ND 138
Docket No.: 20090067
Filing Date: 7/21/2009
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Sandstrom, Dale

Highlight: A district court does not err by denying a motion to dismiss charges of disorderly conduct when the facts supporting the complaint describe conduct that can be the basis of such charges under the disorderly conduct statute, although the defendant also yelled obscenities at a law enforcement officer.

Department of Labor v. Matrix Properties, et al. 2009 ND 137
Docket No.: 20080224
Filing Date: 7/21/2009
Case Type: Appeal - Civil - Other
Author: VandeWalle, Gerald

Highlight: The two-year statute of limitations for a civil discriminatory housing practice action based on design and construction defects is triggered when the building's certificate of occupancy is issued.

Matter of Emelia Hirsch Trust 2009 ND 135
Docket No.: 20080209
Filing Date: 7/16/2009
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Crothers, Daniel John

Highlight: An issue or argument not raised or considered in the district court cannot be raised for the first time on appeal.
An appeal is frivolous if it is flagrantly groundless, devoid of merit, or demonstrates persistence in the course of litigation which evidences bad faith.

Chambering of the New Judgeship in the Southeast Judicial District 2009 ND 134
Docket No.: 20090163
Filing Date: 7/15/2009
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: New judgeship to be chambered in Jamestown.

Chambering of the New Judgeship in the Northwest Judicial District 2009 ND 133
Docket No.: 20090162
Filing Date: 7/15/2009
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: New judgeship to be chambered in Minot.

Hill, et al. v. Lindner, et al. 2009 ND 132
Docket No.: 20080334
Filing Date: 7/9/2009
Case Type: Appeal - Civil - Real Property
Author: Crothers, Daniel John

Highlight: An incidental business use does not violate a covenant restricting use of property to residential purposes only.

Reciprocal Discipline of Thoms 2009 ND 131
Docket No.: 20090191
Filing Date: 7/14/2009
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Suspension of lawyer ordered.

State v. McAvoy 2009 ND 130
Docket No.: 20090024
Filing Date: 7/9/2009
Case Type: Appeal - Criminal - Sexual Offense
Author: VandeWalle, Gerald

Highlight: A convicted sex offender must register an address with law enforcement within three days of coming into a county in which the individual resides or is temporarily domiciled.
When reviewing challenges to the sufficiency of the evidence, the evidence and all reasonable inferences drawn from such evidence are viewed most favorably to the verdict.

State v. Zwicke, Jr. 2009 ND 129
Docket No.: 20090002
Filing Date: 7/9/2009
Case Type: Appeal - Criminal - Drugs/Contraband
Author: VandeWalle, Gerald

Highlight: Under the automobile exception to the warrant requirement, law enforcement officers may search for illegal contraband without a warrant when probable cause exists that certain identifiable objects are probably connected with criminal activity and are probably to be found in the vehicle.
To the extent that State v. Meadows can be read to require something more than mobility for exigent circumstances for an automobile search, it is overruled.
Law enforcement officers are not prevented from searching for and seizing evidence merely because the officers might already have sufficient evidence to sustain a conviction.

Fehl-Haber v. State (Cross Ref w/20060086) 2009 ND 128
Docket No.: 20090026
Filing Date: 7/9/2009
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: District court order denying application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Neva 2009 ND 127
Docket No.: 20090054
Filing Date: 7/9/2009
Case Type: Appeal - Criminal - Misc. Felony
Author: Sandstrom, Dale

Highlight: A defendant whose previous concurrent sentences are converted into consecutive sentences upon revocation of his probation is entitled to receive credit for the time he spent in custody only toward the first of the converted consecutive sentences.

Steinmeyer v. Department of Transportation 2009 ND 126
Docket No.: 20090096
Filing Date: 7/9/2009
Case Type: Appeal - Administrative - Department of Transportation
Author: Sandstrom, Dale

Highlight: Fair administration of an Intoxilyzer test may be established by proof that the method approved by the State Toxicologist for conducting the test has been scrupulously followed. However, 'scrupulous' compliance does not mean 'hypertechnical' compliance.
"Observing" an Intoxilyzer test subject is not the only manner of "ascertaining" that the subject had nothing to eat, drink, or smoke within the twenty minutes prior to the collection of the breath sample as required by the approved method.

City of Grand Forks v. Corman 2009 ND 125
Docket No.: 20080289
Filing Date: 7/9/2009
Case Type: Appeal - Criminal - DUI/DUS/APC
Author: Sandstrom, Dale

Highlight: In a transferred case from a municipal court to a district court, the municipal court retains the authority to consider a defendant's application for court-appointed counsel.
A district court denying a defendant's application for court-appointed counsel in a transferred case from a municipal court does not abuse its discretion in denying the application on the basis that it is not the proper forum.
A defendant who has been advised of his right to counsel and the perils of self-representation waives voluntarily, knowingly, and intelligently his right to counsel if he chooses to represent himself.

Bice, et al. v. Petro-Hunt, L.L.C., et al. (cross-reference w/20030306) 2009 ND 124
Docket No.: 20080265
Filing Date: 7/9/2009
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: Crothers, Daniel John

Highlight: Where gas has no market value at the well and the lease requires royalty to be paid based upon the market value of the gas at the well, lessee can deduct post-production costs incurred in making the gas marketable prior to calculating the royalty.
The "at the well" rule in interpreting oil and gas leases is adopted, and the first marketable product doctrine is rejected.
The language of a contract is to govern its interpretation if the language is clear and explicit and does not involve an absurdity.
Normally, whether a risk-capital charge is commercially reasonable is a question of fact, but when the parties stipulate to the facts in the record and request that the court determine the issue according to the parties' motions for summary judgment, the court can decide the issue as a matter of law.
A party resisting summary judgment must present competent admissible evidence establishing a genuine issue of material fact and cannot simply rely upon the pleadings or unsupported, conclusory allegations.

State v. Maki 2009 ND 123
Docket No.: 20080279
Filing Date: 7/9/2009
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Crothers, Daniel John

Highlight: In reviewing a question of sufficiency of the evidence under N.D.R.Crim.P. 29(a), conflicts in the evidence are not resolved and the credibility of witnesses is not reweighed.
On appeal, the judgment is affirmed if there is evidence which could have allowed the jury to draw an inference reasonably tending to prove guilt and fairly warranting a conviction.
Jurors are presumed to know and apply the common and ordinary meaning of words.

Abernathey v. Department of Transportation 2009 ND 122
Docket No.: 20080336
Filing Date: 7/9/2009
Case Type: Appeal - Administrative - Department of Transportation
Author: Kapsner, Carol

Highlight: A law enforcement officer's approach to a parked vehicle is not a seizure if the officer inquires of the occupant in a conversational manner, does not order the person to do something, and does not demand a response.
An occupant of a vehicle has not been "seized" when a law enforcement officer requests, rather than orders or commands, that the occupant exit a vehicle.

Interest of B.K. and D.K. (CONFIDENTIAL) 2009 ND 121
Docket No.: 20090027
Filing Date: 7/9/2009
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

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

State v. Paul 2009 ND 120
Docket No.: 20080292
Filing Date: 7/9/2009
Case Type: Appeal - Criminal - Sexual Offense
Author: Maring, Mary

Highlight: The decision to admit expert testimony is discretionary with the district court.
A district court must make explicit findings and explain its reasoning for its decision when considering the trustworthiness of a child's out-of-court hearsay statements about sexual abuse.
Evidence of prior sexual abuse of a victim of the charged crime is not evidence of wholly separate and independent crimes, and is not evidence of "other crimes" for purposes of N.D.R.Ev. 404(b).
Uncharged prior acts of sexual abuse between the defendant and the same victim are admissible under the exceptions to N.D.R.Ev. 404(b).
The uncorroborated testimony of a child is sufficient to sustain a conviction of a sexual offense.

State v. Zajac 2009 ND 119
Docket No.: 20080203
Filing Date: 7/9/2009
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Maring, Mary

Highlight: Although a motion for new trial is not necessary for appellate review, when a new trial is sought, the party making the motion is limited on appeal on the grounds presented to the trial court in the motion for a new trial.
Jury instructions are reviewed as a whole to determine whether the instructions fairly and adequately informed the jury of the applicable law.
A defendant is entitled to a jury instruction on a defense if there is evidence that creates a reasonable doubt about an element of the charged offense. Whether there is sufficient evidence to support a jury instruction is viewed in the light most favorable to the defendant.
A defendant may be entitled to an excuse instruction if there is evidence presented at trial that the defendant has a reasonable but mistaken belief that any of the statutory grounds for justification are present.

Vann v. Vann 2009 ND 118
Docket No.: 20080344
Filing Date: 7/9/2009
Case Type: Appeal - Civil - Divorce - Property
Author: Maring, Mary

Highlight: A settlement agreement is unconscionable if there are procedural abuses arising out of the contract formation and substantive abuses relating to the terms of the agreement.
The involvement of only one attorney is troubling, but that fact alone does not conclusively establish an agreement is unconscionable.
A party having capacity and opportunity to read a contract without being misled as to its contents cannot avoid the contract by claiming he has not read it.

Henke v. State (Consolidated w/ 20080348) 2009 ND 117
Docket No.: 20080347
Filing Date: 7/9/2009
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Maring, Mary

Highlight: A district court may summarily dismiss an application for post-conviction relief on its own accord only if the application fails to state a claim for which relief could be granted.
A district court cannot put an applicant to her proof. Under post-conviction relief, only a party can move for summary disposition.

Interest of A.B. (CONFIDENTIAL) 2009 ND 116
Docket No.: 20080256
Filing Date: 7/9/2009
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Maring, Mary

Highlight: A juvenile court's decision to terminate parental rights is a question of fact that will not be overturned unless the decision is clearly erroneous.
The State is not required to provide long-term and intensive treatment if it cannot be successfully undertaken in a time frame that would enable the child to return to the parental home without causing severe dislocation from emotional attachments formed during long-term foster care.