State v. Scholes
, 2008 ND 146,
753 N.W.2d 377
The validity of a search warrant is reviewed using the totality-of-the-circumstances approach, considering all of the information for probable cause together and testing affidavits executed in support of a warrant in a commonsense and realistic
fashion.
Suppression of evidence is not required for a violation of N.D.R.Crim.P. 41 absent a showing that the defendant was prejudiced, or that the violation was an intentional and deliberate disregard of the rule, or that the violation offends the Fourth
Amendment.
To succeed on a challenge to a search warrant based on a claim that law enforcement officers omitted information in the supporting affidavit, the defendant must show: (1) that law enforcement officers omitted facts with the intent to make, or in
reckless disregard of whether they thereby made, the affidavit misleading; and (2) that the affidavit, if supplemented by the omitted information, would not have been sufficient to support a finding of probable cause.
State v. Torkelsen
, 2008 ND 137,
Sexual assault convictions are summarily affirmed under N.D.R.App.P. 35.1(a)(3), the convictions are supported by substantial evidence.
State v. Everett
, 2008 ND 126,
Conviction of gross sexual imposition is summarily affirmed under N.D.R.App.P. 35.1(a)(1) and (3).
State v. Hernandez
, 2008 ND 103,
A district court order revoking probation is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).
State v. Tibor
, 2008 ND 44,
747 N.W.2d 136
District court criminal judgments for guilty of gross sexual imposition are summarily affirmed under N.D.R.App.P. 35.1(a)(7).
State v. Wegley
, 2008 ND 4,
744 N.W.2d 284
Even if a defendant objects to hearsay testimony about a child's out-of-court statement at a pre-trial hearing, the defendant's failure to object at trial limits review to determining whether the admission of that testimony into evidence constitutes
obvious error affecting substantial rights.
To establish obvious error, a defendant must show error that is plain and affects substantial rights, and to affect substantial rights a plain error must have been prejudicial, or have affected the outcome of the proceeding.
Nonverbal conduct is a statement under the hearsay rules if the nonverbal conduct was intended as an assertion.
A declarant's out-of-court statement is not hearsay if the declarant testifies at trial and is subject to cross-examination concerning the statement, and the statement is consistent with the declarant's testimony and is offered to rebut an express or
implied charge against the declarant of recent fabrication or improper influence or motive.
State v. Gandesbery
, 2007 ND 187,
742 N.W.2d 839
Order revoking probation is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).
State v. McAvoy
, 2007 ND 178,
741 N.W.2d 198
Conditions of probation are interpreted as mandatory.
When a violation of probation is contested, the State needs to prove a probation violation by a preponderance of the evidence.
State v. Johnson
, 2007 ND 154,
742 N.W.2d 839
A criminal conviction for failure to register as a sex offender is summarily affirmed under N.D.R.App.P. 35.1(a)(3).
State v. Knight
, 2007 ND 155,
742 N.W.2d 839
Conviction of gross sexual imposition is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (7).
State v. Tibor
, 2007 ND 146,
738 N.W.2d 492
A court does not abuse its discretion in allowing expert testimony about child sexual abuse accommodation syndrome if it finds the testimony may assist the jury in understanding the evidence or determine a fact in issue.
Mere repetition of a child's out-of-court statements does not make them unduly prejudicial.
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.
State v. Muhle
, 2007 ND 132,
737 N.W.2d 647
A district court's evidentiary ruling is reviewed for an abuse of discretion.
Out-of-court testimonial statements may not be admitted into evidence when the child is unavailable to testify unless the defendant has had an opportunity to cross-examine the child. If a defendant has an opportunity to cross-examine the witness at
trial, the admission of testimonial statements would not violate the Confrontation Clause.
Rule 16 of the North Dakota Rules of Criminal Procedure requires only "statements" be disclosed by the prosecution. "Statement" is defined technically and emphasizes formal, written, or recorded declarations.
To establish a violation under Brady v. Maryland, the defendant must prove: (1) the government possessed evidence favorable to the defendant; (2) the defendant did not possess the evidence and could not have obtained it with reasonable
diligence; (3) the prosecution suppressed the evidence; and (4) a reasonable probability exists that the outcome of the proceedings would have been different if the evidence had been disclosed.
A conviction on the ground of insufficient evidence will be reversed only if, after viewing the evidence and all reasonable inferences in the light most favorable to the verdict, no rational factfinder could have found the defendant guilty beyond a
reasonable doubt.
State v. Kautzman
, 2007 ND 133,
738 N.W.2d 1
A mistrial must be declared before the trial is over and before the jury has been discharged. When defense counsel moves for a mistrial, an instruction to the jury must be requested to properly preserve the question for appellate review.
A judgment of acquittal may be entered only if the evidence is insufficient to sustain a conviction.
For an offense to be a lesser included offense, it must be impossible to commit the greater offense without committing the lesser.
If counsel does not object to the trial court's instructions, the issue is not adequately preserved and inquiry on appeal is limited to whether the court's failure to instruct the jury was obvious error affecting substantial rights.
A party may not challenge as error a ruling or other trial proceeding invited by that party.
A trial court has broad discretion when deciding evidentiary matters, and its admission or exclusion of evidence will not be overturned on appeal unless that discretion has been abused.
State v. Vantreece
, 2007 ND 126,
736 N.W.2d 428
Under N.D.C.C. 12.1-20-03(1)(a), the State must prove beyond a reasonable doubt the defendant, by force or threat of death or serious harm, compelled the victim to submit to a sexual act.
In a criminal case charging the defendant with having sex by force, the complainant's mental capacity is relevant to the question of the extent of force required to compel the victim to submit.
State v. Fehl-Haber
, 2007 ND 99,
734 N.W.2d 770
A district court has broad discretion in evidentiary matters, and its decision to admit or exclude evidence will not be overturned unless there has been an abuse of discretion.
In a criminal trial, all communications with the jurors after the jurors have retired for deliberations must be made in open court and in the presence of the defendant.
A criminal defendant may waive the right to have all communications with the jurors made after the case has been submitted to them by failing to object to the trial court's procedure in responding to the jury's request.
To prevail on a motion for a new trial on the ground of newly discovered evidence, the defendant must show: (1) the evidence was discovered after trial, (2) the failure to learn about the evidence at the time of trial was not the result of the
defendant's lack of diligence, (3) the newly discovered evidence is material to the issues at trial, and (4) the weight and quality of the newly discovered evidence would likely result in an acquittal.
Where a sexual assault victim's credibility is not in issue, evidence that the victim made a similar accusation against another individual is immaterial and not likely to result in an acquittal.
State v. Voigt
, 2007 ND 100,
734 N.W.2d 787
A double jeopardy claim is timely if it is raised before or during trial proceedings.
Jeopardy attaches in a jury trial when the jury is empaneled and sworn.
Nonexclusive factors for determining whether termination of a criminal trial is supported by manifest necessity include: 1) whether counsel were afforded an opportunity to be heard on the issue; 2) whether alternatives to a mistrial were explored;
and 3) whether the judge's decision was made after sufficient reflection.
Mistrials declared with the defendant's consent generally do not bar later prosecutions.
A terminating event occurs under the "continuing jeopardy" doctrine if a trial before a new tribunal reasonably implicates the policies of the double jeopardy clause.
State v. Flatt
, 2007 ND 98,
733 N.W.2d 608
Elements to an offense cannot be retroactively applied unless the Legislature expressly declares its intention to do so.
A charging document must sufficiently describe an offense based on the law in effect at the time the conduct occurred.
A defendant is not entitled to relief based on defective charging documents if the documents sufficiently allege an offense, based on the law in effect at the time the criminal conduct occurred, and the district court has jurisdiction over the
matter.
State v. Georgeson
, 2007 ND 59,
734 N.W.2d 342
A conviction for gross sexual imposition is summarily affirmed under N.D.R.App.P. 35.1(a)(1) and (3).
State v. Austin
, 2007 ND 30,
727 N.W.2d 790
Expert testimony is admissible when specialized knowledge will assist the trier of fact in understanding the evidence or determining a fact in issue. Whether expert testimony is useful falls within the district court's discretion, and the decision
whether to allow the testimony will not be reversed on appeal unless the district court has abused its discretion.
A defendant claiming ineffective assistance of counsel must prove that the counsel's representation fell below an objective standard of reasonableness and that the defendant was prejudiced by counsel's deficient performance.
State v. Bates
, 2007 ND 15,
726 N.W.2d 595
After a guilty plea is accepted, but before sentencing, the defendant may withdraw a guilty plea if necessary to correct a manifest injustice, or, if allowed in the court's discretion, for any "fair and just" reason unless the prosecution has been
prejudiced by reliance on the plea.
A factual basis is a statement of facts to assure the defendant is guilty of the crime charged.
A court may determine a sufficient factual basis in one of three ways: (1) the court could inquire directly of the defendant concerning the performance of the acts which constituted the crime; (2) the court could allow the defendant to describe to
the court in his own words what had occurred and then the court could question the defendant; and (3) the court could have the prosecutor make an offer of proof concerning the factual basis for the charge.
When a claim for ineffective assistance of counsel is argued on direct appeal, we review the record to decide if the assistance of counsel is plainly defective. Unless the record affirmatively shows ineffectiveness of constitutional dimensions, the
complaining party must show some evidence in the record to support the claim.
State v. Goebel
, 2007 ND 4,
725 N.W.2d 578
Prosecutions for the sexual abuse of child victims are subject to a particular statute of limitations and tolling provision contained in the North Dakota Century Code.
If the victim is under the age of fifteen at the time of the sexual abuse, the statute of limitations does not begin to run until the victim reaches the age of fifteen, which extends the initial seven-year limitation period until the victim reaches
the age of twenty-two.
If the victim does not report the sexual abuse to law enforcement authorities within the seven-year period, but reports the offense sometime later, the limitation period runs for three years from the date the offense is reported.
State v. Wardner
, 2006 ND 256,
725 N.W.2d 215
A presentence investigation must be conducted before sentencing for gross sexual imposition, but an additional presentence investigation is not required for imposition of a previously suspended sentence after revocation of probation.
Conditions of probation are interpreted as mandatory.
State v. Sevigny
, 2006 ND 211,
722 N.W.2d 515
Evidence of an alibi defense may be excluded if a defendant fails to give sufficient notice of his intent to present evidence of an alibi.
A defendant has a right to give testimony about an alibi, even if the defendant fails to give notice of the defense and all alibi evidence is excluded.
A district court must make sufficient findings of fact when admitting or excluding testimony about a child's out-of-court statements about sexual abuse.
A district court has wide discretion over the mode and order of interrogating witnesses and presenting evidence.
Intentional disobedience of a court order constitutes contempt.
State v. Entzi
, 2006 ND 150,
725 N.W.2d 588
Denial of a motion to terminate probation is summarily affirmed under N.D.R.App.P. 35.1(a)(6) and (7).
State v. Blue
, 2006 ND 134,
717 N.W.2d 558
Under Crawford v. Washington, 541 U.S. 36 (2004), the admission of out-of-court testimonial statements in criminal cases is precluded, unless the witness is unavailable to testify and the accused has had an opportunity to cross-examine the
declarant.
Videotape recording of child's statement to forensic interviewer that included government involvement is a testimonial statement and if the child is available to testify, and the playing of the videotape without the opportunity to cross-examine the
witness violates defendant's constitutional right to confront his accuser.
The "reliability and trustworthiness" factors are still to be used for non-testimonial statements. But when testimonial statements are at issue, the constitutional right to confrontation cannot be superseded by reliability and trustworthiness.
State v. Davenport
, 2006 ND 74,
719 N.W.2d 384
An order revoking probation is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).
State v. Hernandez
, 2005 ND 214,
707 N.W.2d 449
A trial court has broad discretion to determine whether a witness is qualified as an expert and whether the witness's testimony will assist the trier of fact.
A party's failure to object to evidence admitted at trial generally waives the party's right to complain on appeal about the admission of the evidence.
A trial court has discretion to decide whether a party has opened the door for the admission of otherwise inadmissible evidence.
A jury is generally presumed to follow a curative instruction, and a curative instruction to disregard certain evidence is generally sufficient to remove improper prejudice.
A trial court has broad discretion to balance the probative value of evidence against the risk of unfair prejudice.
To establish a due process violation for the destruction of evidence, a defendant must establish bad faith by the State, which means the evidence was deliberately destroyed by or at the direction of a State agent who intended to thwart and deprive
the defense of the information.
State v. White Mountain
, 2005 ND 209,
709 N.W.2d 21
Conviction of gross sexual imposition and tampering with evidence is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (7).
State v. Oie
, 2005 ND 160,
704 N.W.2d 573
A district court does not abuse its discretion in accepting a guilty plea when the factual basis is established through open court inquiry and review of the pre-sentence investigation report.
State v. Frankfurth
, 2005 ND 167,
704 N.W.2d 564
A criminal information must contain all essential elements of the offense in order to charge that offense.
A motion to arrest the judgment may be made after trial when the information fails to charge a crime.
A defective information failing to charge a crime cannot be "cured" through proper jury instruction or other means short of amendment.
State v. Moore
, 2005 ND 159,
704 N.W.2d 573
Denial of motion to correct illegal sentence is summarily affirmed under N.D.R.App.P. 35.1(a)(1).
State v. Parisien
, 2005 ND 152,
703 N.W.2d 306
All communications with jurors, after a case has been submitted to them, must be made in open court and in the presence of the defendant.
The mere length of time a jury is kept in deliberations, in itself, does not establish that a verdict was coerced.
The giving of an Allen-type charge after the trial court has been informed of a deadlocked jury's numerical split is a factor to consider in assessing whether the totality of the circumstances indicate a coerced verdict.
State v. Krull
, 2005 ND 63,
693 N.W.2d 631
If a defendant does not object at trial to the introduction of a child's hearsay statements regarding sexual abuse, our inquiry is limited to whether the admission into evidence constitutes obvious error affecting substantial rights.
A trial court abuses its discretion and commits plain error if, under N.D.R.Ev. 803(24), it admits a child's hearsay statements regarding sexual abuse without first making explicit findings regarding the reliability and trustworthiness of the
statements. Merely quoting the terms of the hearsay rule and ordering the statements admitted is inadequate.
Even if a trial court commits plain error, for reversal, the error must have affected the defendant's substantial rights by altering the trial's outcome.
A defendant's inculpatory words are substantial evidence on which a rational jury can convict, particularly when such words are unrefuted.
State v. Ramsey
, 2005 ND 42,
692 N.W.2d 498
A correct result will not be set aside merely because the trial court assigned an incorrect reason, if the result is the same under the correct law and reasoning.
When a defendant argues that the testimony of a witness is a recent fabrication or the result of improper influence or motive, prior statements of the witness may be admitted to rebut the charge if the witness is available for cross-examination and
the prior statement is consistent with the testimony.
Subsequent crimes, wrongs, or acts are considered under the same evidentiary analysis as other or prior acts.
Doubts about the admissibility of evidence, such as doubts about the existence of unfair prejudice, confusion of issues, misleading, undue delay, or waste of time, should be resolved in favor of admitting the evidence, taking necessary precautions by
way of contemporaneous instructions to the jury followed by additional admonition in the charge.
A jury is presumed to follow instructions given by the trial court.
The purpose of an appeal is to review the actions of the trial court, not to hear issues raised for the first time on appeal.
State v. Thill
, 2005 ND 13,
691 N.W.2d 230
When the State fails to preserve evidence that is neither clearly exculpatory or inculpatory, a defendant must prove the State acted in bad faith to constitute a denial of due process.
Jurors are presumed to follow the trial court's jury instructions.
State v. Igou
, 2005 ND 16,
691 N.W.2d 213
When challenging the sufficiency of the evidence to support a criminal conviction, the defendant bears the burden of showing that the evidence, when viewed in the light most favorable to the verdict, reveals no reasonable inference of guilt.
Authority to notice obvious error on appeal is exercised cautiously and only in exceptional circumstances in which the defendant has suffered a serious injustice.
State v. Bates
, 2004 ND 222,
691 N.W.2d 193
Conviction of gross sexual imposition is summarily affirmed under N.D.R.App.P. 35.1(a)(3).
State v. Kokron
, 2004 ND 122,
688 N.W.2d 402
Judgment and sentence for gross sexual imposition are summarily affirmed under N.D.R.App.P. 35.1(a)(4).
State v. Flanagan
, 2004 ND 112,
680 N.W.2d 241
An appellate court may notice a claimed error that was not brought to the attention of the trial court if there was plain error which affected the defendant's substantial rights, and the appellate court concludes the error seriously affects the
fairness, integrity or public reputation of judicial proceedings.
Omitting an element of the crime from the jury instruction is obvious error, but is not reversible error when the element was not disputed.
The issue of impermissible gender-based peremptory challenges must be raised in the trial court.
State v. Causer
, 2004 ND 75,
678 N.W.2d 552
The State is required to provide prior written notice of the alleged probation violations to a probationer.
The trial court is not required to inform a probationer of his statutory right to appeal from a probation revocation. A probationer has no constitutional right to appeal and there is no notification requirement in North Dakota's statutes or rules of
procedure.
A probationer does not have a constitutional right to counsel on appeal from a probation revocation because there is no constitutional right to appeal. A trial court has no duty to inform a probationer of his state-granted right to counsel, nor does
a trial court have a duty to appoint counsel for a probationer, absent a probationer's request.
A probationer's right against double jeopardy is not violated by a trial court's imposition of additional probation as part of resentencing after probation is revoked.
North Dakota's statutory scheme provides a probationer with actual notice that a probation violation could result in the imposition of a sentence more severe than his originally imposed sentence.
State v. Buchholz
, 2004 ND 77,
678 N.W.2d 144
A party's failure to object at trial to references to, and evidence of, other alleged bad acts waives that issue.
A party's failure to submit a proposed jury instruction on consideration of evidence of other bad acts precludes a party from claiming the trial court erred in failing to instruct the jury on that issue.
The statute of limitations in the 1993 version of N.D.C.C. 29-04-03.1 applies to offenses for which the statute of limitations had not expired under prior law.
In the absence of specific language in a sequestration order, N.D.R.Ev. 615 does not apply to witnesses' out-of-court communications during trial.
The failure to raise a violation of the ten-day, pre-sentence report notice at sentencing waives that issue.
State v. Schiele
, 2004 ND 53,
676 N.W.2d 813
Conviction for luring a minor by computer is summarily affirmed under N.D.R.App.P. 35.1(a)(3).
State v. Backlund
, 2003 ND 184,
672 N.W.2d 431
An adult is guilty of luring a minor by computer when (1) the adult knows the character and content of a communication that, in whole or in part, implicitly or explicitly discusses or depicts actual or simulated nudity, sexual acts, sexual contact,
sadomasochistic abuse, or other sexual performances, (2) the adult willfully uses the computer communication system to initiate or engage in such communication with a person the adult believes to be a minor, and (3) by means of that communication,
the adult willfully importunes, invites, or induces the person the adult believes to be a minor to engage in sexual acts or have sexual contact with the adult, or to engage in a sexual performance, obscene sexual performance, or sexual conduct for
the adult's benefit, satisfaction, lust, passions, or sexual desires.
North Dakota has jurisdiction to prosecute a defendant who solicits a person believed to be a minor to engage in sexual acts from a computer in Minnesota, where the communication is received in North Dakota and the defendant travels to and is
arrested in North Dakota.
North Dakota's luring-a-minor-by-computer law does not violate the Commerce Clause or the First Amendment.
The registration and notification provisions for sexual offenders do not violate procedural due process or double jeopardy.
State v. Ehli
, 2003 ND 133,
667 N.W.2d 635
Due process requires that parties be given notice and afforded a meaningful opportunity to present objections.
State v. Dimmitt
, 2003 ND 111,
665 N.W.2d 692
If a judge impermissibly participates in plea negotiations, and a defendant shows his guilty plea resulted from the influence or confusion caused by the trial court's involvement in the negotiations, the defendant must be permitted to withdraw his
guilty plea.
The State's failure to make an agreed upon sentence recommendation may result in a manifest injustice in the sentencing process entitling the defendant to withdraw his guilty plea.
State v. Thorson
, 2003 ND 76,
660 N.W.2d 581
To establish obvious error, the defendant has the burden to show (1) error, (2) that is plain, and (3) that affects substantial rights.
Under N.D.R.Crim.P. 16, the prosecution must disclose, upon the defendant's request, names and statements of witnesses the prosecution intends to call and also the relevant statements within the prosecution's possession or control of other
persons.
The defendant's failure to discover evidence from a lack of reasonable diligence defeats a Brady claim that the prosecution withheld that evidence.
State v. Moore
, 2003 ND 83,
662 N.W.2d 263
The right to appeal and the deadline for filing an appeal are statutory.
A defendant may not appeal the dismissal of a charge without prejudice.
State v. Anderson
, 2003 ND 30,
657 N.W.2d 245
Even if there was a motion in limine, failure to object at trial operates as a waiver of the claim of error unless the alleged error amounts to an obvious error affecting the substantial rights of the defendant.
A trial court does not err in admitting letters a defendant wrote to the victim if the letters were evidence of the ongoing course of conduct between the defendant and the victim with which the defendant was charged in the complaint.
State v. Hernandez
, 2002 ND 200,
655 N.W.2d 84
Judgment entered on defendant's guilty plea to gross sexual imposition is summarily affirmed under N.D.R.App.P. 35.1(a)(4).
State v. Skorick
, 2002 ND 190,
653 N.W.2d 698
A trial court errs when it permits witnesses to remain in the courtroom for purposes of returning as rebuttal witnesses despite a request for sequestration. The error may be harmless when the testimony by the rebuttal witness did not affect the
defendant's substantial rights.
The control and scope of opening and closing arguments is largely a matter left to the discretion of the trial court, and a case will not be reversed on the ground that the prosecutor exceeded the scope of permissible closing argument unless a clear
abuse of discretion is shown.
State v. Jackson
, 2002 ND 105,
646 N.W.2d 676
It is not ineffective assistance of counsel to fail to move for a judgment of acquittal when the prosecution has presented a prima facie case.
State v. Steiger
, 2002 ND 79,
644 N.W.2d 187
When sufficiency of the evidence is challenged, the evidence is examined in the light most favorable to the verdict to see whether a rational trier of fact could have found the essential elements of the crime were established beyond a reasonable
doubt.
In a criminal case tried without a jury, the trial court need only make a general finding of guilty or not guilty.
State v. Disbrow
, 2002 ND 73,
647 N.W.2d 706
The defendant's conviction on multiple counts of gross sexual imposition is summarily affirmed under N.D.R.App.P. 35.1(a)(1).
State v. Knowels
, 2002 ND 62,
643 N.W.2d 20
Failure to register as a sex offender is not a strict liability offense but, instead, includes the culpable mental state of "willfully."
A crime is completed when all of its essential elements are present and complete.
State v. Vincent
, 2002 ND 57,
647 N.W.2d 706
Conviction of gross sexual imposition is summarily affirmed under N.D.R.App.P. 35.1(a)(5) and (7).
State v. Radcliffe
, 2002 ND 56,
647 N.W.2d 706
Judgment of conviction for gross sexual imposition is summarily affirmed under N.D.R.App.P. 35.1(a)(3).
State v. Hirschkorn
, 2002 ND 36,
640 N.W.2d 439
Because of the importance of an accused's confrontation rights, the safeguards built into N.D.R.Ev. 803(24), allowing admission in evidence of a child's hearsay statements about sexual abuse, must be strictly observed.
When there is a total lack of factual support for admission of a child's hearsay statements under N.D.R.Ev. 803(24) and a probability that the erroneous admission of the hearsay statements affected the outcome of the trial, admission of the
statements is obvious error entitling the defendant to a new trial.
State v. Guy
, 2002 ND 19,
642 N.W.2d 532
Conviction of gross sexual imposition, burglary, robbery, and felonious restraint is summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (7).
State v. Palmer
, 2002 ND 5,
638 N.W.2d 18
To establish a failure to comply with the statutory process for drawing a jury, the complaining party must provide a factual basis showing the process was prejudicial, actually excluded, systematically excluded, or statistically excluded a fair cross
section of the population.
Ordinarily, a claim of ineffective assistance of counsel should be resolved in a post- conviction relief proceeding where the parties can fully develop a record on the issue of counsel's performance and its impact on the defendant's case.
State v. Martin
, 2001 ND 189,
636 N.W.2d 447
To be convicted of continual sexual abuse of a child, one must be shown to have engaged in three or more sexual acts or contacts during a period of three months or more. This period has no maximum time limit.
State v. Wiest
, 2001 ND 150,
632 N.W.2d 812
Without an objection to testimony at trial, appellate review is limited to determining if its admission constituted obvious error affecting substantial rights.
A trial court has broad discretion in evidentiary matters, and its decision to admit or exclude evidence will not be overturned unless the court abused its discretion.
State v. Miller
, 2001 ND 132,
631 N.W.2d 587
A trial court does not abuse its discretion or violate the defendant's right to present a defense when it excludes hearsay evidence about a dream the child-victim had about another male relative.
A trial court does not abuse its discretion when it excludes evidence which would have been merely cumulative of abundant other evidence establishing a fact.
As long as the defendant and witness are present in the courtroom and their view of each other is not physically obstructed, the Confrontation Clause is not violated by allowing the witness to testify while facing away from the defendant.
State v. Schwartz
, 2001 ND 105,
629 N.W.2d 585
Jury verdict of guilty on two counts of misdemeanor sexual assault is summarily affirmed under N.D.R.App.P. 35.1(a)(3), (4).
State v. McHugh
, 2001 ND 76,
629 N.W.2d 585
Conviction for gross sexual imposition based on a jury verdict is summarily affirmed under N.D.R.App.P. 35.1(a)(3),(4).
State v. Axtman
, 2001 ND 64,
629 N.W.2d 585
Judgment of conviction for gross sexual imposition is summarily affirmed under N.D.R.App.P. 35.1(a)(3).
State v. Klein
, 2001 ND 65,
629 N.W.2d 585
Appeal from criminal judgment and commitment following a jury verdict of guilty is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (7).
State v. Kelly
, 2001 ND 5,
625 N.W.2d 264
Judgment of conviction for gross sexual imposition, attempted gross sexual imposition, felonious restraint, and theft summarily affirmed under N.D.R.App.P. 35.1(a)(3).
State v. Lunstad
, 2000 ND 198,
622 N.W.2d 432
Conviction of surreptitious intrusion summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (4).
State v. Entzi
, 2000 ND 148,
615 N.W.2d 145
Parties who want voir dire or arguments of counsel recorded must request they be recorded.
A party's right to exercise peremptory challenges is not violated if the party uses a peremptory challenge to exclude a juror the trial court refused to excuse for cause and no biased jurors sit.
Generally, a trial court has broad discretion in selecting a method by which it impanels a jury.
A trial court's decision not to excuse a challenged juror for cause is reviewed under an abuse-of-discretion standard.
A sentencing hearing should be held in the county where the trial was held.
State v. Rubey
, 2000 ND 119,
611 N.W.2d 888
The sex-offender-registration statute requires the offender to register even if a court has not advised the offender of the requirement.
"Address" as used in the sex-offender-registration statute includes an address used only for receiving mail, such as a post office box address.
State v. Johnson
, 2000 ND 69,
617 N.W.2d 131
Gross-sexual-imposition conviction summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (4).
State v. Abdullahi
, 2000 ND 39,
607 N.W.2d 561
Deportation and mandatory, indefinite detention under federal immigration laws are collateral consequences of a guilty plea to a state criminal charge, and a trial court need not advise a defendant about those consequences before accepting a guilty
plea.
State v. Burr
, 1999 ND 143,
598 N.W.2d 147
Requiring sexual offender registration by those convicted before adoption of the registration statute is not punishment and is not an ex post facto clause violation.
State v. Syvertson
, 1999 ND 134,
597 N.W.2d 652
An initial interview without Miranda warnings does not necessarily taint a subsequent interview with Miranda warnings.
A false assurance to a suspect that he is not in danger of prosecution is not coercion.
A trial judge is not prohibited from prematurely learning of the State's dangerous special or habitual offender notice.
Results of a pretrial competency evaluation cannot be used at sentencing when the defendant has not presented mental-status evidence.
Harmless-error analysis applies to the admission of psychiatric evidence in violation of a defendant's fifth amendment right against self-incrimination.
State v. Syvertson
, 1999 ND 137,
597 N.W.2d 644
A trial judge is not prohibited from prematurely learning of the State's dangerous special or habitual offender notice.
The fourth amendment inquiry of an inventory search turns not on the issue of probable cause, but on the issues of whether the vehicle was properly impounded and the search was carried out in accordance with standard police procedures.
A determination of the admissibility of an out-of-court photographic identification involves a two-step inquiry: whether the photographic identification procedure was suggestive, and whether the identification was able under the totality of the
circumstances.
Two or more offenses may be charged in separate counts in the same complaint if they are of the same or similar character or are based upon the same act or transaction.
State v. Leinen
, 1999 ND 138,
598 N.W.2d 102
N.D.R.Ev. 801(d)(1)(ii) does not allow prior consistent statements merely because a witness has been discredited, or to bolster the veracity of the witness's story. To qualify a statement as nonhearsay under N.D.R.Ev. 801(d)(1)(ii) the declarant must
have testified and been subject to cross-examination about the statement, the statement must be offered to rebut a charge of recent fabrication or improper motive or influence, and the statement must be a prior consistent statement made before the
charge of recent fabrication or improper influence arose.
State v. Klein
, 1999 ND 76,
593 N.W.2d 325
A photograph of a sexual abuse victim is admissible to permit the jury to see what the victim looked like at the time of the offense.
Under appropriate circumstances, narrow questions about other sexual offenses at a location may be permissible for impeachment.
State v. Osier
, 1999 ND 28,
590 N.W.2d 205
Once the prosecution introduces medical evidence to establish penetration in a trial for gross sexual imposition, the defendant should be allowed to provide an alternative explanation for the complainant's physical condition.
Generally, to be considered on appeal an issue must have been appropriately raised in the trial court.
Unless there is substantial reason to fear prejudice, a trial court may decline to question jurors about possible exposure to news reports.
State v. Hill
, 1999 ND 26,
590 N.W.2d 187
The trial court has discretion whether to allow testimony by a rebuttal witness who has heard evidence in violation of a sequestration order.
When a party has moved for new trial, any subsequent appeal by that party is limited to review of issues presented to the trial court on the motion for new trial.
State v. Vincent
, 1999 ND 22,
592 N.W.2d 923
Order revoking probation summarily affirmed under N.D.R.App.P. 35.1(a)(7).
State v. Vasquez
, 1998 ND 185,
595 N.W.2d 602
Judgment and sentence for gross sexual imposition are
summarily affirmed under N.D.R.App.P. 35.1(a)(3).
State v. Klein
, 1998 ND 182,
595 N.W.2d 602
A district court order revoking probation and
increasing the length of defendant's sentence as
allowed by N.D.C.C. 12.1-32-07(6) is summarily affirmed
under N.D.R.App.P. 35.1(a)(7).
State v. Weatherspoon
, 1998 ND 148,
583 N.W.2d 391
Generally, admission of evidence tending to establish an accused
had been willing or unwilling to take a lie detector test is
improper.
It is not an abuse of discretion to exclude polygraph evidence
when the parties did not stipulate to its admissibility and the
proponent did not present scientific evidence of the reliability
of the results of polygraph examinations.
Evidence that health care providers deemed counseling to be
necessary or advisable treatment is relevant and admissible in a
sexual imposition case.
State v. Messner
, 1998 ND 151,
583 N.W.2d 109
A trial court does not abuse its discretion by allowing a social
worker to testify about what an alleged child-victim said when
interviewed where there were sufficient guarantees of
trustworthiness of the victim's out-of-court statements. An
accused's confrontation rights are not violated when the child is
available for cross-examination.
State v. Neufeld
, 1998 ND 103,
578 N.W.2d 536
Whether jointly charged offenses should be separated for trial is
left to the trial court's discretion.
A prior out-of-court statement may be used to rebut an implied
charge of recent fabrication or improper influence or motive.
The trial court may allow impeachment under Rule 608(b),
N.D.R.Evid., as to specific instances of conduct, only if the
conduct is probative of the witness's character for truthfulness
or untruthfulness.
Section 12.1-20-14, N.D.C.C., requires the defense to move in
writing in advance of trial if evidence of sexual conduct is to
be used to attack the credibility of the complaining witness.
State v. Jorde
, 1998 ND 63,
576 N.W.2d 524
Criminal Judgment and sentence of two years for corruption or
solicitation of a minor summarily affirmed under N.D.R.App.P.
35.1(a)(4), (7).
State v. Sabinash
, 1998 ND 32,
574 N.W.2d 827
The defendant's incriminating statements to a deputy sheriff were
made voluntarily.
Miranda warnings are required only when the accused is in
custody.
State v. McClean
, 1998 ND 21,
575 N.W.2d 200
North Dakota sentencing statutes permit a trial court to impose a
maximum probation sentence in addition to a maximum prison
sentence for misdemeanors.
State v. Harmon
, 1997 ND 233,
575 N.W.2d 635
Untimely post-conviction appeal is dismissed when defendant fails
to request extension of time to file the notice of appeal from
the trial court.
Trial court does not abuse its discretion in denying substitute
counsel where trial court determines comments by defendant's
attorney do not present an irreconcilable conflict.
Defendant is not denied right to counsel where after having
substitute counsel denied, defendant continues to request
substitute counsel and refuses to cooperate with appointed
counsel, the trial court determines defendant had elected to
proceed pro se, and the record reflects defendant's actions are
knowing and intelligent.
State v. Osier
, 1997 ND 170,
569 N.W.2d 441
In a criminal prosecution for sexual contact with a minor under
15 years of age, the trial court committed reversible error in
admitting, under Rule 404(b), N.D.R.Ev., a prior act of sexual
fondling of a minor by the defendant, where the evidence was not
relevant to motive, scheme, plan, or any other exception under
the rule, but served the sole purpose of demonstrating the
defendant's propensity for unlawful criminal conduct.
State v. DeCoteau
, 1997 ND 121,
569 N.W.2d 288
Conviction of gross sexual imposition summarily affirmed under
N.D.R.App.P. 35.1(a)(3).
State v. Holy Bear
, 1997 ND 67,
565 N.W.2d 505
Conviction of gross sexual imposition affirmed under N.D.R.App.P.
35.1.
State v. Christensen
, 1997 ND 57,
561 N.W.2d 631
Trial court's decision to allow evidence of defendant's prior
acts with victim of gross sexual imposition was not in error for
the prior acts did not create a Rule 404(b), N.D.R.Evid., issue,
nor did the trial court err in asking the jury to isolate
particular testimony it requested be read.
State v. Klein
, 1997 ND 25,
560 N.W.2d 198
Defendant was entitled to withdraw guilty plea as a matter of
right before binding plea agreement was accepted by the court.
State v. Foster
, 1997 ND 8,
560 N.W.2d 194
For good cause shown, a trial court may issue a continuance of
the Mandatory Disposition of Detainers Act if the continuance is
issued within the original 90 days as specified by the Act, and
the trial is scheduled and heard within the extension period.
A substitution of defense counsel the day before the scheduled
trial and the court's full calendar may combine to form "good
cause."
State v. McDonell
,
550 N.W.2d 62 (N.D. 1996)
State v. Thompson
,
548 N.W.2d 778 (N.D. 1996)
State v. Buss
,
551 N.W.2d 567 (N.D. 1996)
State v. Sievers
,
543 N.W.2d 491 (N.D. 1996)
State v. Bell
,
540 N.W.2d 599 (N.D. 1995)
State v. Vance
,
537 N.W.2d 545 (N.D. 1995)
State v. Davenport
,
536 N.W.2d 686 (N.D. 1995)
State v. Halton
,
535 N.W.2d 734 (N.D. 1995)
State v. Bjornson
,
531 N.W.2d 315 (N.D. 1995)
State v. McClung
,
529 N.W.2d 853 (N.D. 1995)
State v. Gonderman
,
531 N.W.2d 11 (N.D. 1995)
State v. Monson
,
518 N.W.2d 171 (N.D. 1994)
State v. Murray
,
510 N.W.2d 107 (N.D. 1994)
State v. Thompson
,
504 N.W.2d 315 (N.D. 1993)
State v. McMorrow
,
503 N.W.2d 848 (N.D. 1993)
State v. Hagensen
,
498 N.W.2d 615 (N.D. 1993)
State v. Lange
,
497 N.W.2d 83 (N.D. 1993)
State v. Morstad
,
493 N.W.2d 645 (N.D. 1992)
State v. Mason
,
479 N.W.2d 146 (N.D. 1991)
State v. Skaro
,
474 N.W.2d 711 (N.D. 1991)
State v. Thill
,
473 N.W.2d 451 (N.D. 1991)
State v. Wright
,
470 N.W.2d 594 (N.D. 1991)
State v. Thill
,
468 N.W.2d 643 (N.D. 1991)
State v. Zueger
,
459 N.W.2d 235 (N.D. 1990)
State v. Hanson
,
452 N.W.2d 329 (N.D. 1990)
State v. Copeland
,
448 N.W.2d 611 (N.D. 1989)
State v. Sayler
,
443 N.W.2d 915 (N.D. 1989)
State v. Stoppleworth
,
442 N.W.2d 415 (N.D. 1989)
State v. Reinart
,
440 N.W.2d 503 (N.D. 1989)
State v. Klem
,
438 N.W.2d 798 (N.D. 1989)
State v. Drader
,
432 N.W.2d 553 (N.D. 1988)
State v. Brown
,
420 N.W.2d 5 (N.D. 1988)
State v. Jones
,
418 N.W.2d 782 (N.D. 1988)
State v. Smuda
,
419 N.W.2d 166 (N.D. 1988)
State v. Millner
,
409 N.W.2d 642 (N.D. 1987)
State v. Saavedra
,
406 N.W.2d 667 (N.D. 1987)
State v. Schill
,
406 N.W.2d 660 (N.D. 1987)
State v. Gutsche
,
405 N.W.2d 295 (N.D. 1987)
State v. Janda
,
397 N.W.2d 59 (N.D. 1986)
State v. Kingsley
,
383 N.W.2d 828 (N.D. 1986)
State v. Abell
,
383 N.W.2d 810 (N.D. 1986)
State v. Fontaine
,
382 N.W.2d 374 (N.D. 1986)
State v. Johnson
,
379 N.W.2d 291 (N.D. 1986)
Coogan v. Fennell
,
379 N.W.2d 791 (N.D. 1985)
State v. Ford
,
377 N.W.2d 125 (N.D. 1985)
State v. Drader
,
374 N.W.2d 601 (N.D. 1985)
State v. Tibor
,
373 N.W.2d 877 (N.D. 1985)
State v. Foard
,
355 N.W.2d 822 (N.D. 1984)
State v. Kringstad
,
353 N.W.2d 302 (N.D. 1984)
State v. Oasheim
,
353 N.W.2d 291 (N.D. 1984)
State v. Gross
,
351 N.W.2d 428 (N.D. 1984)
State v. Cummins
,
347 N.W.2d 571 (N.D. 1984)
State v. Carr
,
346 N.W.2d 723 (N.D. 1984)
State v. Walden
,
336 N.W.2d 629 (N.D. 1983)
State v. Anderson
,
336 N.W.2d 123 (N.D. 1983)
State v. Hilsman
,
333 N.W.2d 411 (N.D. 1983)
State v. Sadowski
,
331 N.W.2d 48 (N.D. 1983)
State v. Sadowski
,
329 N.W.2d 583 (N.D. 1983)
State v. Manke
,
328 N.W.2d 799 (N.D. 1982)
State v. Hagemann
,
326 N.W.2d 861 (N.D. 1982)
State v. Heger
,
326 N.W.2d 855 (N.D. 1982)
State v. Forsland
,
326 N.W.2d 688 (N.D. 1982)
State v. Jenkins
,
326 N.W.2d 67 (N.D. 1982)
State v. Buckley
,
325 N.W.2d 169 (N.D. 1982)
State v. Mondo
,
325 N.W.2d 201 (N.D. 1982)
State v. Lawson
,
321 N.W.2d 514 (N.D. 1982)
State v. Brickzin
,
319 N.W.2d 150 (N.D. 1982)
State v. Morris
,
316 N.W.2d 80 (N.D. 1982)
State v. McLain
,
312 N.W.2d 343 (N.D. 1981)
State v. Sadler
,
305 N.W.2d 913 (N.D. 1981)
State v. McLain
,
301 N.W.2d 616 (N.D. 1981)
State v. Mees
,
272 N.W.2d 284 (N.D. 1978)
State v. Olmstead
,
261 N.W.2d 880 (N.D. 1978)
State v. Houser
,
261 N.W.2d 382 (N.D. 1977)
State v. Piper
,
261 N.W.2d 650 (N.D. 1977)
State v. Allred
,
254 N.W.2d 701 (N.D. 1977)
State v. Joern
,
249 N.W.2d 921 (N.D. 1977)
State v. Rueb
,
249 N.W.2d 506 (N.D. 1976)
State v. Olmstead
,
246 N.W.2d 888 (N.D. 1976)
State v. Olmstead
,
242 N.W.2d 644 (N.D. 1976)
State v. Kirk
,
211 N.W.2d 757 (N.D. 1973)
State v. Klein
,
200 N.W.2d 288 (N.D. 1972)
State v. Snavely
,
189 N.W.2d 632 (N.D. 1971)
State v. Schlittenhardt
,
147 N.W.2d 118 (N.D. 1966)