New opinions: May 30
State v. Sanchez 2023 ND 106
Docket No.: 20220335
Filing Date: 5/30/2023
Case Type: SEXUAL OFFENSE
Author: McEvers, Lisa K. Fair
Highlight: The district court abuses its discretion when it allows testimony regarding statements made by a victim before the victim testifies and is subject to cross-examination regarding those statements.
Allowing testimony regarding statements made by a victim before the victim testifies and is subject to cross-examination regarding those statements will be considered harmless if the testimony of the witnesses was merely cumulative to that of the victim.
Substantial evidence existed to support the conviction and is summarily affirmed under N.D.R.App.P. 35.1(a)(3).
Brown v. State 2023 ND 105
Docket No.: 20220341
Filing Date: 5/30/2023
Case Type: POST-CONVICTION RELIEF
Author: Per Curiam
Highlight: A district court order denying an application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).
An attorney’s actions during voir dire are considered matters of trial strategy.
An unsuccessful trial strategy does not make defense counsel’s assistance defective, and we will not second-guess counsel’s defense strategy through the distorting effects of hindsight.
State v. Johnson 2023 ND 104
Docket No.: 20220331
Filing Date: 5/30/2023
Case Type: MISC. STATUTORY OFFENSE (FELONY)
Author: Per Curiam
Highlight: Convictions of domestic violence and false information or report to law enforcement are summarily affirmed under N.D.R.App.P. 35.1(a)(7).
Highlight: An attorney may not compromise a client’s claims in the absence of express authority, and an attorney may not waive a client’s substantial rights without the client’s consent. Whether an attorney has been given express authority to settle a claim normally presents a question of fact.
The trial court may take one of three possible avenues to decide a motion to enforce a settlement agreement: (1) hold an evidentiary hearing on the motion to determine disputed facts and then enter judgment after taking evidence to prove the agreement and any defenses that the nonmoving party may proffer, (2) dispose of the motion on the pleadings, or (3) treat the motion as akin to one for summary judgment.
Whether a party is entitled to a jury trial depends on whether the case is an action at law or a claim in equity. Historically, specific performance has been an equitable remedy, and no jury trial is available on such claims.
When conflicting testimony is presented, our ability to examine a cold record is a poor substitute for the fact finder’s opportunity to observe the demeanor of the witnesses.
State v. Heinrich 2023 ND 102
Docket No.: 20220339
Filing Date: 5/30/2023
Case Type: SEXUAL OFFENSE
Author: Per Curiam
Highlight: A criminal judgment entered after a jury convicted defendant of one count of continuous sexual abuse of a child and two counts of promoting obscenity to minors is summarily affirmed under N.D.R.App.P. 35.1(a)(3).
Highlight: An operator of oil and gas wells may impose a statutory penalty on a mineral owner who does not lease or participate in the risks and cost of drilling.
A risk penalty may be imposed only if an operator has made a good-faith attempt to lease from a non-participating mineral owner.
Interest of P.S. 2023 ND 100
Docket No.: 20220298
Filing Date: 5/30/2023
Case Type: CIVIL COMMIT OF SEXUAL PREDATOR
Author: Jensen, Jon J.
Highlight: Civil commitments of sexually dangerous individuals are reviewed under a modified clearly erroneous standard. A district court’s decision will be affirmed unless it is induced by an erroneous view of the law or the decision is not supported by clear and convincing evidence.
Substantive due process requires that in order to be civilly committed as a sexually dangerous individual, that individual must have serious difficulty controlling their behaviors. There must be a connection between an individual’s disorder and their inability to control behavior such that it would likely result in future sexually predatory conduct. In establishing this connection, a district court cannot rely solely on prognostic factors, but must support its finding with contemporary evidence or specific instances of conduct to demonstrate serious difficulty controlling behavior.
Under N.D.C.C. § 25-03.3-13, the executive director of the Department of Human Services maintains authority to place a sexually dangerous individual in an appropriate facility or program at which treatment is available. A district court is not allowed to determine treatment placement under N.D.C.C. § 25-03.3-13 at a discharge hearing.
Interest of G.L.D. 2023 ND 99
Docket No.: 20220295
Filing Date: 5/30/2023
Case Type: CIVIL COMMIT OF SEXUAL PREDATOR
Author: Crothers, Daniel John
Highlight: A district court order denying petition for discharge from civil commitment as a sexually dangerous individual is affirmed.
Gwilliams v. Gwilliams 2023 ND 98
Docket No.: 20220149
Filing Date: 5/30/2023
Case Type: DIVORCE/PROPERTY DIV./ALIMONY
Author: McEvers, Lisa K. Fair
Highlight: Whether to stay enforcement of a judgment pending appeal is a collateral matter within the district court’s jurisdiction.
An order denying a motion for contempt and an order denying a motion for N.D.R.Civ.P. 60(b) relief from a divorce judgment are summarily affirmed under N.D.R.App.P. 35.1(a)(4).
State v. Brown 2023 ND 97
Docket No.: 20220315
Filing Date: 5/30/2023
Case Type: MISC. STATUTORY OFFENSE (FELONY)
Author: Tufte, Jerod E.
Highlight: The court may modify or enlarge conditions of probation at any time before the expiration or termination of the period for which the probation remains conditional, upon notice to the probationer and with good cause. If the probationer violates a condition of probation, the court may continue the existing probation with or without modifying or enlarging the conditions or revoke probation and impose sentence.
A probationer is entitled to notice of the alleged violations of probation.
Where the court sets a revocation matter for review at a subsequent hearing without issuing a final order disposing of the petition, the petition remains pending until that later hearing and issuance of a final order.
