New opinions: May 26
Gonzalez v. State 2022 ND 117
Docket No.: 20210289
Filing Date: 5/26/2022
Case Type: POST-CONVICTION RELIEF
Author: VandeWalle, Gerald W.
Highlight: Post-judgment motions following a judgment denying post-conviction relief will be treated as another application for post-conviction relief.
District court orders denying an application for post-conviction relief are summarily affirmed under N.D.R.App.P. 35.1(a)(7).
A proposed pre-filing order designating a person as a vexatious litigant is not appealable.
Wickham v. State 2022 ND 116
Docket No.: 20210313
Filing Date: 5/26/2022
Case Type: POST-CONVICTION RELIEF
Author: Tufte, Jerod E.
Highlight: A comment on a defendant’s post-arrest silence is an improper comment on the right to remain silent in violation of the Fifth and Fourteenth Amendments of the United States Constitution.
In considering whether counsel’s failure to object to a Doyle violation establishes a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different in the postconviction relief context, the district court must consider the factors outlined in State v. Wilder, 2018 ND 93, ¶ 9, 909 N.W.2d 684. They include: (1) the use to which the prosecution puts the post arrest silence; (2) who elected to pursue the line of questioning; (3) the quantum of other evidence indicative of guilt; (4) the intensity and frequency of the reference; and (5) the availability to the trial judge of an opportunity to grant a motion for mistrial or to give curative instructions.
A witness’s isolated reference to a defendant’s invocation of his right to counsel, without further elaboration or further mention by the State at any other time during the trial or in closing arguments, does not warrant a new trial for the defendant.
Schaff v. State 2022 ND 115
Docket No.: 20210337
Filing Date: 5/26/2022
Case Type: POST-CONVICTION RELIEF
Author: Per Curiam
Highlight: An order denying post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).
Atkins v. State 2022 ND 114
Docket No.: 20220006
Filing Date: 5/26/2022
Case Type: POST-CONVICTION RELIEF
Author: Per Curiam
Highlight: An order denying an application for postconviction relief and a pre-filing order under N.D. Sup. Ct. Admin. R. 58 concluding the applicant is a vexatious litigant are summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7).
Highlight: A formal, evidentiary hearing is required whenever an administrative agency acts in a quasi-judicial capacity unless the parties either agree otherwise or there is no dispute of a material fact.
A summary judgment is inappropriate if a fact-finder must draw inferences and make findings on disputed facts to support its decision.
Even when facts are undisputed, a summary judgment may not be granted if reasonable differences of opinion exist as to the inferences to be drawn from those facts.
State v. Kelly 2022 ND 112
Docket No.: 20210342
Filing Date: 5/26/2022
Case Type: DUI/DUS
Author: Per Curiam
Highlight: Criminal judgments entered after the defendant pleaded guilty to driving under the influence, fourth or greater offense, are summarily affirmed under N.D.R.App.P. 35.1(a)(7) and (8).
Highlight: The owner of a limited liability company generally is not liable for the company’s debts, obligations, or other liabilities.
District courts must sufficiently address each factor considered in piercing a company’s veil and explain how the factors do or do not apply.
Anderson v. Spitzer, et al. 2022 ND 110
Docket No.: 20210290
Filing Date: 5/26/2022
Case Type: CHILD CUST & SUPPORT (Div.\Other)
Author: Crothers, Daniel John
Highlight: A district court may modify residential responsibility if it finds a material change in circumstances and modification is necessary to serve the best interests of the child.
To warrant modification, the material change in circumstances must adversely affect the child or result in a general decline in the child’s condition.
Highlight: Parental rights may be terminated upon a finding of abandonment.
A party seeking termination of parental rights must prove all elements by clear and convincing evidence.
Section 14-16-06(1), N.D.C.C., permits termination of parental rights in an adoption proceeding.
Matter of Didier 2022 ND 108
Docket No.: 20210325
Filing Date: 5/26/2022
Case Type: CIVIL COMMIT OF SEXUAL PREDATOR
Author: Per Curiam
Highlight: A district court’s order denying an application for discharge from civil commitment as a sexually dangerous individual is summarily affirmed under N.D.R.App.P. 35.1(a)(2).
State v. Landrus 2022 ND 107
Docket No.: 20210304
Filing Date: 5/26/2022
Case Type: ASSAULT
Author: Crothers, Daniel John
Highlight: This Court may consider an obvious error that affects substantial rights.
Jury instructions must correctly and adequately inform the jury of the applicable law.
Instructing the jury on the wrong subdivision of law is a plain error.
Sustaining a conviction based on jury instructions that do not require findings on every essential element of the charged crime violates due process.
State v. Yellow Hammer 2022 ND 106
Docket No.: 20210209
Filing Date: 5/26/2022
Case Type: HOMICIDE
Author: Tufte, Jerod E.
Highlight: Future medical expenses may be awarded as restitution to a crime victim if the amount can be ascertained from the evidence presented at a restitution hearing.
Rath v. Rath, et al. 2022 ND 105
Docket No.: 20210120
Filing Date: 5/26/2022
Case Type: CHILD CUST & SUPPORT (Div.\Other)
Author: Jensen, Jon J.
Highlight: A district court has broad discretion on evidentiary matters and over the conduct of a hearing. A ruling on a motion in limine is reviewed under the abuse of discretion standard.
The right to closing arguments can be waived by the parties and narrowed by the courts, but it cannot be unilaterally denied.
To modify parenting time, a movant must establish a material change of circumstances has occurred since the prior parenting time order and that it is in the child’s best interests to modify the order.
A demand for change of judge, once granted, carries forward in any particular case, even when a new proceeding is filed in a divorce case triggering a new judge assignment.
The Supreme Court may, on its own motion or the motion of any party to an appeal, enter a pre-filing order prohibiting a vexatious litigant from filing any new litigation in the courts of this state as a self-represented party without first obtaining leave of a judge of the court where the litigation is proposed to be filed.
Highlight: The district court may exercise its inherent power to sanction when a party violates the duty to preserve evidence and destroys evidence relevant to the lawsuit.
The duty to preserve evidence may be discharged and the evidence may be destroyed if the custodial party has a legitimate need to destroy the evidence and has provided sufficient notice to the other parties allowing for a full and fair opportunity to inspect the evidence.
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