Opinions

Eslinger v. WSI, et al. 2009 ND 90
Docket No.: 20080232
Filing Date: 5/27/2009
Case Type: Appeal - Administrative - Workers Compensation
Author: VandeWalle, Gerald

Highlight: The retirement presumption contained in N.D.C.C. 65-05-09.3(2), providing that a disabled employee who becomes eligible to receive social security retirement benefits is considered to be retired and no longer eligible for workers compensation disability benefits, does not apply to claimants who have been receiving continuing, regular, and ongoing disability benefits since before July 31, 1995, the effective date of the statute.
A claimant, whose medical condition improved and who was ineligible for total disability benefits for an eight-month period after the effective date of the retirement presumption statute, lost her right to rely upon continuing, ongoing disability benefits, and the retirement presumption statute applied to her claim when she reapplied for further disability benefits.

Kappenman, et al. v. Klipfel, et al. 2009 ND 89
Docket No.: 20080184
Filing Date: 5/26/2009
Case Type: Appeal - Civil - Personal Injury
Author: Maring, Mary

Highlight: A township board with actual knowledge of an unusually hazardous or unusulally dangerous condition on an unimproved section line road has a duty to warn travelers of that condition; actual knowledge given to at least one member of the township board impose the duty.
Failing to warn of a known unusually dangerous condition in a road is not covered by discretionary function immunity because it implicates no social, economic, or political policies.
The recreational use immunity statutes do not apply to an unimproved section line road which is made available to the public for nonrecreational travel.
Although a landowner abutting a section line continues to own the land subject to an easement, the landowner does not owe the public a duty to keep the road in a safe condition.
Breach of a duty sounding in tort will give rise to an action based upon nuisance.

Rutherford v. BNSF Railway Co. 2009 ND 88
Docket No.: 20080237
Filing Date: 5/22/2009
Case Type: Appeal - Civil - Real Property
Author: Kapsner, Carol

Highlight: Equitable estoppel may preclude the application of the statute of limitations by a party whose actions induced another party not to file a claim within a prescribed statutory period. To raise a claim of equitable estoppel before a trial court, a party does not necessarily have to use the word "estoppel"; however, the opposing party has to be provided with fair notice of the claim. An issue not properly raised before the district court may not be raised for the first time on appeal.
The doctrine of unconscionability allows a court to deny enforcement of a contract because of procedural abuses arising from the formation of the contract and substantive abuses pertaining to the contract's terms. To prevail on an unconscionability claim, the party alleging unconscionability must demonstrate some quantum of both procedural and substantive unconscionability, and courts are to balance the factors, viewed in totality, to determine if the particular provision of the contract is so one-sided as to be unconscionable.
A railroad does not have a duty, as a common carrier, to lease its real property. In voluntarily contracting to do so, it is as free as any other private party to impose any condition it desires and the lessee is willing to accept.
Parties to a lease may agree that a structure on real property is classified as either part of the realty or personalty, which shall remain upon or can be removed from the leased real property upon termination of the lease.

Carlson v. Workforce Safety & Insurance, et al 2009 ND 87
Docket No.: 20080250
Filing Date: 5/18/2009
Case Type: Appeal - Administrative - Workers Compensation
Author: Sandstrom, Dale

Highlight: A corporation is an artificial person that must act through its agents, and a corporation may not be represented by a non-attorney agent in a legal proceeding.
A request for reconsideration of an administrative agency's informal decision, made on behalf of a corporate entity, is not conduct that could be performed by a non-lawyer.
Pro hac vice admission is required for nonresident attorneys who engage in the practice of law by appearing, either in person, by signing pleadings, or by being designated as counsel in actions filed in administrative agencies, and a motion for pro hac vice admission must be filed no later than 45 days after the service of the pleading, motion, or other paper.
A hearing officer includes an agency head when presiding in an administrative proceeding, or any other person designated to preside in an administrative proceeding.

Neuhalfen v. WSI, et al. 2009 ND 86
Docket No.: 20080175
Filing Date: 5/15/2009
Case Type: Appeal - Administrative - Workers Compensation
Author: Kapsner, Carol

Highlight: To trigger civil penalties for making a false statement in connection with a claim for WSI benefits, WSI must prove: (1) there is a false claim or statement; (2) the false claim or statement is willfully made; and (3) the false claim or statement is made in connection with any claim or application for benefits.
Based upon the civil penalty sought, there are two tests to determine the "materiality" of a willful false statement. If WSI seeks reimbursement for benefits paid, the level of materiality required is proof by WSI that the false claim or false statement caused the benefits to be paid in error. If WSI seeks only forfeiture of future benefits, however, no such causal connection is required.

State v. Corman 2009 ND 85
Docket No.: 20080156
Filing Date: 5/14/2009
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Crothers, Daniel John

Highlight: In an appeal challenging the sufficiency of the evidence, this Court looks only to the evidence and reasonable inferences most favorable to the verdict to ascertain if there is substantial evidence to warrant the conviction.
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.
Sufficient evidence exists to find defendant contributed to the delinquency or deprivation of a minor under N.D.C.C. 14-10-06 where testimony established defendant gave minor victim pornographic DVDs and magazines.

Luger, et al. v. Luger, et al. 2009 ND 84
Docket No.: 20080194
Filing Date: 5/14/2009
Case Type: Appeal - Civil - Contracts
Author: Sandstrom, Dale

Highlight: A district court has subject matter jurisdiction over activities conducted on an Indian reservation by persons who are not members of the tribe residing on that reservation when such activities do not involve the tribe's authority to regulate or control such activities.
A district court has personal jurisdiction over a member of an Indian tribe residing on an Indian reservation other than that of his enrollment.
A district court abuses its discretion in ordering a monetary default judgment when monetary relief was not requested in the complaint.

Disciplinary Board v. Light (Consolidated w/ 20080321-20080327) 2009 ND 83
Docket No.: 20080320
Filing Date: 5/14/2009
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer disbarred and ordered to pay costs of disciplinary proceedings.

Kovarik v. Kovarik 2009 ND 82
Docket No.: 20080230
Filing Date: 5/14/2009
Case Type: Appeal - Civil - Divorce - Property
Author: Sandstrom, Dale

Highlight: A district court's property division in a divorce is not erroneous with respect to property transferred by one spouse in contemplation of divorce when the court does not include it in the mathematical worksheet but the record reflects the court considered it.
A purported gift of certificates of deposit during the donor's lifetime to one of the spouses will not be included in the marital estate if it fails to meet either one of the requisite elements of a valid gift, i.e., donative intent, delivery, and acceptance.

Haugrose v. Anderson 2009 ND 81
Docket No.: 20080131
Filing Date: 5/14/2009
Case Type: Appeal - Civil - Child Support
Author: Sandstrom, Dale

State ex rel. Stenehjem v. Simple.Net, Inc. 2009 ND 80
Docket No.: 20080144
Filing Date: 5/6/2009
Case Type: Appeal - Civil - Contempt of Court
Author: Maring, Mary

Highlight: A federal judgment based on stipulation does not pre-empt valid state law that does not conflict with any federal law.
A court has discretion in deciding whether to grant a stay on the basis of comity.

Frokjer v. ND Board of Dental Examiners 2009 ND 79
Docket No.: 20080200
Filing Date: 4/30/2009
Case Type: Appeal - Civil - Administrative Proceeding
Author: Sandstrom, Dale

Highlight: A medical professional's interest in a license to practice is a substantial, constitutionally protected property right.
Disciplinary proceedings against a dentist must provide due process protections, including the right to a fair hearing before an impartial decision maker.
The mere fact that a licensing board or agency has the authority to assess costs and attorney fees in the disciplinary process does not render the board or agency inherently biased in violation of due process.
It is the administrative agency's responsibility to assess the credibility of witnesses and resolve conflicts in the evidence, and reviewing courts do not reweigh the evidence, make independent findings of fact, or substitute their judgment for that of the agency.

State v. Saulter 2009 ND 78
Docket No.: 20080220
Filing Date: 4/30/2009
Case Type: Appeal - Criminal - Assault
Author: Crothers, Daniel John

Highlight: Lay opinion testimony must be rationally based on the perceptions of the witness.
Lay opinion testimony is admissible only to help the jury or court understand the facts about which the witness is testifying and not to provide specialized explanations or interpretations an untrained layman could not make if perceiving the same acts or events.
If evidence is admitted in error, the entire record will be considered and the court will decide in light of all the evidence whether the error was so prejudicial that the defendant's rights were affected and a different decision would have occurred absent the error.

Disciplinary Board v. Stensland 2009 ND 77
Docket No.: 20080213
Filing Date: 4/30/2009
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Lawyer suspended from the practice of law for sixty days and ordered to pay costs and expenses of the proceedings for violating N.D.R. Prof. Conduct 3.3 and 5.5 and N.D.R. Lawyer Discipl. 4.5 and 6.3.
A lawyer's failure to notify a client with a pending matter of his suspension from the practice of law is a violation of N.D.R. Lawyer Discipl. 6.3.

State v. Johnson 2009 ND 76
Docket No.: 20070248
Filing Date: 4/30/2009
Case Type: Appeal - Criminal - Sexual Offense
Author: VandeWalle, Gerald

Highlight: The affirmative defense of mistake of law requires that the individual seeking to use it had made reasonable effort to determine whether his or her conduct constituted an offense.
In determining whether a prosecutor's statement at trial was an impermissible encroachment upon a defendant's right against self-incrimination, the language used must have been manifestly intended to be or was of such a character that a jury would naturally and necessarily take it to be a comment on the failure of the accused to testify. Such comments must also be considered in the context in which they were made.

Matter of D.V.A. (CONFIDENTIAL) 2009 ND 75
Docket No.: 20080319
Filing Date: 4/30/2009
Case Type: Appeal - Civil - Civil Commitment of Sexually Dangerous Individual
Author: Sandstrom, Dale

Highlight: Absent a petition for discharge, a committed sexually dangerous individual does not have a right to a discharge hearing.
A district court's decision to hold a hearing following its review of the annual reevaluation reports regarding a committed sexually dangerous individual's mental condition is a matter of discretion and is therefore subject to an abuse of discretion standard of review.

Farmers Union Oil Company v. Smetana 2009 ND 74
Docket No.: 20080158
Filing Date: 4/30/2009
Case Type: Appeal - Civil - Real Property
Author: Kapsner, Carol

Highlight: Although an order granting summary judgment is not appealable, an attempted appeal from the order granting summary will be treated as an appeal from a subsequently entered consistent judgment, if one exists.
A motion for summary judgment is not an opportunity for the district court to conduct a mini-trial, and if there are disputed issues of material fact that require resolution by findings of fact, the party opposing summary judgment is entitled to present its evidence to a finder of fact in a full trial.
A deed may not be reformed to correct a mutual mistake if it would prejudice rights acquired by third persons in good faith and for value.
A third-party purchaser acts without good faith if he has actual or constructive notice of the specific defect to be cured by reformation of the deed.

Sailer v. Sailer 2009 ND 73
Docket No.: 20080114
Filing Date: 4/30/2009
Case Type: Appeal - Civil - Child Support
Author: Kapsner, Carol

Highlight: A premarital agreement is not enforceable if it was not executed voluntarily; however, the party against whom enforcement is sought has the burden to prove it was not executed voluntarily.
In a premarital agreement, parties may contract to keep their property separate. If one spouse uses his or her earnings to support the other, such fact does not, alone, indicate he or she voluntarily waived the enforceability of the premarital agreement.
Section 14-03.1-06(2), N.D.C.C., does not preclude enforcement of a premarital agreement if a party does not prove that enforcement of the premarital agreement would cause him or her to be eligible for public assistance.
When a trial court discusses whether a premarital agreement is clearly unconscionable, its analysis requires complete factual findings about the parties' relative property values, the other resources, and forseeable needs of the spouse asserting the premarital agreement is unconscionable.
A trial court is required to determine the total value of the marital estate in order to make an equitable division of property.

Gowan v. Ward County Commission 2009 ND 72
Docket No.: 20080239
Filing Date: 4/30/2009
Case Type: Appeal - Civil - Other
Author: Crothers, Daniel John

Highlight: A local governing body's decision to deny a rezoning request will not be reversed unless the local body acted arbitrarily, capriciously, or unreasonably, or there is not substantial evidence supporting the decision.

Ude v. State (Consolidated w/20080304, 20080305 & 20080306) 2009 ND 71
Docket No.: 20080303
Filing Date: 4/30/2009
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Maring, Mary

Highlight: To avoid summary dismissal of an ineffective assistance of counsel claim, the post-conviction applicant must present some evidence that his counsel's performance fell below an objective standard of reasonableness, and he must overcome the presumption that his counsel's performance was within the broad range of reasonableness.
Once the State requests summary disposition, the petitioner is put on his proof and must provide evidentiary support for his application in response to the State's request.
A petitioner cannot claim the district court erred in denying him the opportunity to present witness testimony when the petitioner never informed the district court he had witnesses present to testify.
Failing to make an offer of proof at trial prevents a meaningful appeal on the issue of whether witnesses should have been allowed to testify.

Dronen v. Dronen 2009 ND 70
Docket No.: 20080110
Filing Date: 4/30/2009
Case Type: Appeal - Civil - Child Support
Author: Maring, Mary

Highlight: As a general rule, courts do not look favorably upon separating siblings in custody cases, although split custody is not prohibited.
A long-term marriage supports an equal property distribution.
If parties in a divorce action cannot agree upon the present value of a retirement account, it may be necessary to divide the future benefits using a formula that equally allocates the risks and benefits of the retirement.
Application of the Bullock formula is not required in every case involving retirement benefits. Instead, a district court should consider the facts of each case when deciding the best way to equitably divide the marital property.
A district court has the inherent power to sanction a litigant for misconduct.
When sanctioning a party, the district court should consider the culpability, or state of mind, of the party against whom sanctions are being imposed; a finding of prejudice against the moving party, and the degree of this prejudice, including the impact it has on presenting or defending the case; and, the availability of less severe alternative sanctions.

State v. Mitchell 2009 ND 69
Docket No.: 20080293
Filing Date: 4/30/2009
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Criminal judgment for terrorizing summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Johnson v. Department of Transportation 2009 ND 68
Docket No.: 20080309
Filing Date: 4/30/2009
Case Type: Appeal - Administrative - Department of Transportation
Author: Per Curiam

Highlight: District court judgment affirming an administrative decision suspending driving privileges for three years after arrest for driving under the influence of alcohol is summarily affirmed under N.D.R.App.P. 35.1(a)(5).

State v. Tran 2009 ND 67
Docket No.: 20080240
Filing Date: 4/30/2009
Case Type: Appeal - Criminal - Drugs/Contraband
Author:

Highlight: Criminal judgment finding appellant guilty of possession of marijuana with intent to deliver and possession of ecstasy is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

State v. Mund 2009 ND 66
Docket No.: 20080266
Filing Date: 4/30/2009
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Per Curiam

Highlight: Conviction for delivery of alcohol to a minor is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Asset Acceptance LLC v. Grzeskowiak 2009 ND 65
Docket No.: 20080335
Filing Date: 4/30/2009
Case Type: Appeal - Civil - Contracts
Author: Per Curiam

Highlight: Order denying motion to vacate default judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(4).
Order denying demand for change of judge is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

Clifford v. State 2009 ND 64
Docket No.: 20080248
Filing Date: 4/30/2009
Case Type: Appeal - Civil - Post-Conviction Relief
Author:

Highlight: Order denying post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(7).

State v. Mitchell 2009 ND 63
Docket No.: 20080274
Filing Date: 4/30/2009
Case Type: Appeal - Criminal - Assault
Author: Per Curiam

Highlight: Sentencing order finding defendant guilty of assault is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Neva v. Fennell 2009 ND 62
Docket No.: 20080189
Filing Date: 4/30/2009
Case Type: Appeal - Civil - Personal Injury
Author:

Highlight: Order denying motion for a new trial is summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Grzeskowiak v. Nodak Electric Coop. 2009 ND 61
Docket No.: 20080298
Filing Date: 4/30/2009
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Per Curiam

Highlight: Judgment of dismissal for failure to properly serve process is summarily affirmed under N.D.R.App.P. 35.1(a)(6) and (7).

Sanderson v. Harlow 2009 ND 60
Docket No.: 20080282
Filing Date: 4/30/2009
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: Order dismissing plaintiff's joint custody action with prejudice is summarily affirmed under N.D.R.App.P. 35.1(a)(6).

Ellis v. North Dakota State University 2009 ND 59
Docket No.: 20070005
Filing Date: 4/9/2009
Case Type: Appeal - Civil - Employer/Employee Dispute
Author: VandeWalle, Gerald

Highlight: Equitable estoppel may preclude the application of a statute of limitations by a party whose actions induce another party to not file a claim within a prescribed statutory period.
In balancing the constitutional authority of the Board of Higher Education to remove faculty and employees, the constitutional authority of the legislature and the constitutional limits of review by the judicial branch under separation of powers concepts, the proper standard of review of a substantive Board decision to dismiss an employee for cause is whether a reasoning mind reasonably could have determined that the factual conclusions reached were proved by the weight of the evidence.

Disciplinary Board v. Nemec (Consolidated w/ 20090078) 2009 ND 58
Docket No.: 20090077
Filing Date: 4/9/2009
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Suspension of lawyer ordered.

Newman v. State (cross-ref w/20060294) 2009 ND 57
Docket No.: 20080136
Filing Date: 4/8/2009
Case Type: Appeal - Civil - Post-Conviction Relief
Author:

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

State v. Black Cloud 2009 ND 56
Docket No.: 20080261
Filing Date: 4/8/2009
Case Type: Appeal - Criminal - Misc. Felony
Author: Per Curiam

Highlight: Criminal judgment finding appellant guilty of terrorizing is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Interest of M.W. (CONFIDENTIAL) 2009 ND 55
Docket No.: 20080190
Filing Date: 4/7/2009
Case Type: Appeal - Criminal - Juvenile Law
Author: Maring, Mary

Highlight: A statute is ambiguous if it is susceptible to meanings that are different, but rational.
Under N.D.C.C. 27-20-34, a juvenile court is to automatically transfer a case involving gross sexual imposition or attempted gross sexual imposition only if the gross sexual imposition or attempted gross sexual imposition charge is "by force or by threat of imminent death, serious bodily injury, or kidnapping."

State v. Kunze 2009 ND 54
Docket No.: 20080253
Filing Date: 4/7/2009
Case Type: Appeal - Criminal - Misc. Felony
Author:

Highlight: Criminal judgment for contact by bodily fluids with a law enforcement officer is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

Interest of B.F. (CONFIDENTIAL) 2009 ND 53
Docket No.: 20080140
Filing Date: 4/6/2009
Case Type: Appeal - Criminal - Juvenile Law
Author: Crothers, Daniel John

Highlight: Double jeopardy bars the State from appealing a juvenile court judge's order rejecting a judicial referee's determination of guilt.

Bergum v. ND Workforce Safety and Insurance, et al. 2009 ND 52
Docket No.: 20080097
Filing Date: 4/6/2009
Case Type: Appeal - Administrative - Workers Compensation
Author: Maring, Mary

Highlight: A claimant seeking workforce safety and insurance benefits has the burden of proving by a preponderance of the evidence that the claimant has suffered a compensable injury and is entitled to benefits.
A compensable injury must be established by medical evidence supported by objective medical findings.
It is not a compensable injury when the claimant's employment merely acts to trigger symptoms in a preexisting injury, disease, or other condition unless a claimant's employment substantially accelerates the progression of, or substantially worsens the severity of, the preexisting injury, disease, or other condition.

Langer, et al. v. Pender, et al. 2009 ND 51
Docket No.: 20080115
Filing Date: 4/6/2009
Case Type: Appeal - Civil - Probate, Wills, Trusts
Author: Sandstrom, Dale

Highlight: The primary objective in construing a trust instrument is to ascertain the settlor's intent.
When a trust instrument is unambiguous, the settlor's intent is ascertained from the language of the trust document itself.
General rules of construction of written documents apply to the construction of trust instruments.
Particular clauses of a contract are subordinate to its intent.
When provisions in a contract are irreconcilable, the words which are inconsistent with the contract's nature or with the main intention of the parties are to be rejected.

Fremling v. Fremling 2009 ND 50
Docket No.: 20080197
Filing Date: 4/6/2009
Case Type: Appeal - Civil - Child Support
Author: Per Curiam

Highlight: Divorce judgment denying spousal support summarily affirmed under N.D.R.App.P. 35(1)(a)(2).

Reciprocal Discipline of Thoms 2009 ND 49
Docket No.: 20090100
Filing Date: 4/6/2009
Case Type: Discipline - Attorney - Original Proceeding
Author: Per Curiam

Highlight: Suspension of lawyer ordered.

Hoff v. Krebs, et al. 2009 ND 48
Docket No.: 20080249
Filing Date: 4/2/2009
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: VandeWalle, Gerald

Highlight: The implied co-insured rule does not apply when the initial claim arises from an injured third party.
The legal principle underlying the implied co-insured rule is the mutually insurable interest between a lessor and lessee.

State v. Bethke 2009 ND 47
Docket No.: 20080159
Filing Date: 4/2/2009
Case Type: Appeal - Criminal - Misc. Felony
Author: Kapsner, Carol

Highlight: The failure to file an information does not automatically require reversal if the error is harmless beyond a reasonable doubt.
The failure to arraign a defendant does not warrant a reversal of a conviction if the issue is not raised before trial.
After an adverse decision at a preliminary hearing, the State may issue a new complaint if the State offers new evidence or has other good cause. An analysis from the State Laboratory constitutes new evidence.

Interest of J.K. (Confidential) 2009 ND 46
Docket No.: 20080180
Filing Date: 4/2/2009
Case Type: Appeal - Criminal - Juvenile Law
Author: Crothers, Daniel John

Highlight: Findings of fact in juvenile matters will not be set aside on appeal unless clearly erroneous.
To establish theft of property under N.D.C.C. 12.1-23-02(1), the State must prove an individual (1) knowingly (2) takes or exercises unauthorized control over, or makes an unauthorized transfer of an interest in, the property of another (3) with intent to deprive the owner thereof.
Sufficient evidence existed to find juvenile committed theft because testimony of accomplice was corroborated by independent evidence connecting the juvenile with the commission of the theft.

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

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

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

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

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

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

State v. Henes 2009 ND 42
Docket No.: 20080166
Filing Date: 4/2/2009
Case Type: Appeal - Criminal - Sexual Offense
Author: Maring, Mary

Highlight: Issues not raised to the district court will not be addressed for the first time on appeal unless the alleged error rises to the level of obvious error under N.D.R.Crim.P. 52(b).
A district court enhances a sentence when it increases a defendant's sentence beyond the statutory maximum sentence to another offense level or sentencing range, or under a mandatory sentencing provision because of a subsequent offense.
A district court may consider an uncounseled conviction when exercising its sentencing discretion, but may not consider an uncounseled conviction when enhancing a term of imprisonment for a subsequent offense without evidence of a valid waiver of the right to counsel.

State v. Foreid 2009 ND 41
Docket No.: 20080128
Filing Date: 4/2/2009
Case Type: Appeal - Criminal - Sexual Offense
Author: Sandstrom, Dale

Highlight: An additional or different offense is not charged when an information is amended to fix an error in the classification of the charged offense and comply with statutory requirements.
For an instruction on a lesser included offense, there must be evidence on which the jury could rationally find beyond a reasonable doubt that the defendant is not guilty of the greater offense and to find beyond a reasonable doubt that the defendant is guilty of the lesser.