Justia North Dakota Supreme Court Opinion Summaries

Paul King was convicted by jury of refusing to submit to chemical testing after being arrested for driving under the influence. The charges were made pursuant to Bismarck City Ordinance 12-10-01(1). King argued on appeal the district court erred in denying his request to give his proposed jury instructions, failing to give him an opportunity to object to the jury instructions, and allowing testimony about a preliminary screening test. Finding no reversible error from the district court record, the North Dakota Supreme Court affirmed. View "City of Bismarck v. King" on Justia Law

Jasmine Nice appealed a district court judgment entered on her conditional plea of guilty to driving under the influence-refusal-first offense in violation of N.D.C.C. 39-08-01(1)(e)(2) pending an appeal of the court’s order denying her motion to dismiss. Nice argued N.D.C.C. 39-08-01(1)(e) was unconstitutional, the deputy violated her due process rights when he read her the implied consent advisory multiple times, and the State’s failure to execute the search warrant should have resulted in dismissal of the refusal charge. Because Nice refused to take a urine test after a search warrant was secured, the North Dakota Supreme Court affirmed the judgment. View "North Dakota v. Nice" on Justia Law

Rodney Chisholm appeals from the district court’s summary dismissal of his application for post-conviction relief, denial of his motion to compel, denial of his request for counsel, and denial of his request for a change of judge. Chisholm’s application for post-conviction relief stems from his conviction of murder on May 3, 2011. Chisholm was sentenced to 30 years’ imprisonment and the North Dakota Supreme Court affirmed the conviction. After review, the Supreme Court concluded the properly denied the peremptory demand for change of judge, and the Court affirmed the denial of the peremptory demand. The request for recusal of the assigned judge should have been considered by the assigned judge, and the Supreme Court therefore reversed the denial of the request for recusal based on bias and prejudice. The matter was remanded for consideration of the request for recusal for bias or prejudice by the assigned judge and, subsequent to a determination on the request for recusal, reconsideration of the motion to compel discovery, request for appointment of counsel, and summary dismissal of the post-conviction application. View "Chisholm v. North Dakota" on Justia Law

In September 2017, Fargo police implemented an undercover operation to apprehend individuals using the internet to arrange sexual encounters with minors. The operation posted an ad on the BackPage website describing an eighteen-year-old woman. Sixty-two different phone numbers responded to the ad, but after text conversations revealing the woman was fourteen, only two individuals agreed to meet her at a hotel. One of these individuals was Bhim Kumar Rai, a refugee from Nepal. Rai was read his Miranda rights and interrogated by two officers in the hotel room for approximately forty minutes. Other operation members were also in the room. Rai’s phone was seized and placed in “airplane mode.” During the interrogation, the officers read Rai messages from his conversation with the undercover officer and asked Rai for the pass code to his phone. Rai later filed a motion to suppress evidence, arguing the officers unlawfully searched his phone and he did not validly waive his Miranda rights. The motion was denied. On appeal, Rai argued his Fourth Amendment right against unlawful search and seizure was violated, his Fifth and Sixth Amendment rights were violated when officers detained and questioned him without an interpreter or counsel, the evidence was insufficient to find him guilty of patronizing a minor for commercial sexual activity, and a rational fact-finder would have found he proved the affirmative defense of entrapment by a preponderance of the evidence. Finding no reversible error, the North Dakota Supreme Court affirmed denial of Rai's suppression motion. View "North Dakota v. Rai" on Justia Law

M.M. appeals from a juvenile court order denying his motion to dismiss a juvenile petition pertaining to an underlying juvenile delinquency case after entering conditional admissions to committing delinquent acts of simple assault and contact by bodily fluids. On October 17, 2017, a juvenile petition was filed with the juvenile court. At the time the juvenile petition was filed, M.M. resided at the Youth Correctional Center (“YCC”). M.M. made his initial appearance on November 7, 2017. A pretrial conference was scheduled for November 14, 2017, and trial was set for November 27, 2017. On November 21, 2017, M.M. moved to dismiss the petition, arguing the hearing on the petition was not held within the required time limits for a child in detention. M.M. simultaneously requested a continuance in order to allow him to complete discovery. The State opposed the motion to dismiss, arguing the motion itself was untimely and that M.M. was not a child in detention. The juvenile court denied M.M.’s motion to dismiss but granted his request for a continuance, delaying the trial an additional month. On January 16, 2018, M.M. admitted to the allegations of delinquent acts on a conditional basis, preserving his right to appeal. M.M. argued the juvenile court erred by denying his motion to dismiss because the hearing on the petition was not held within 30 days of the filing of the petition. M.M. conceded at oral argument that he was no longer contesting a violation regarding the timing of the initial hearing on the petition. The North Dakota Supreme Court found M.M.’s initial and adjudicative hearings were scheduled within time constraints prescribed by North Dakota Rules of Juvenile Procedure, therefore affirming the juvenile court order denying his motion to dismiss. View "Interest of M.M." on Justia Law

James Alberts Jr. appealed an amended order revoking his probation and sentencing him to life in prison with the possibility of parole. In 2008, Alberts pled guilty to murder under N.D.C.C. 12.1-16-01, a class AA felony. The district court sentenced Alberts to 20 years in prison with the balance suspended for five years after he served seven years. The court ordered Alberts to serve the suspended portion on probation subject to the conditions set out in Appendix A, entitled “Conditions for Sentence to Probation Deferred or Suspended Sentence.” In May 2013, the conditions of Alberts’ probation were amended to include that he have no contact with children under the age of 18, except his biological siblings and their biological children and only if another adult approved by his probation officer was present. In October 2013, the State moved to revoke Alberts’ probation. After a hearing, the district court revoked Alberts’ probation, finding he violated the conditions of his probation. The court resentenced Alberts to life in prison, ordering him to serve 11 years with credit for time previously served and with “the remainder suspended for five (5) years from release from DOCR, with his previous Appendix A reimposed.” In December 2017, the State moved to revoke Alberts’ probation, alleging Alberts violated various conditions of his probation including being in possession of a dangerous weapon, failing to report to his probation officer, and committing multiple offenses. Alberts argued the district court’s 2013 order resentencing him did not say the suspended portion of the sentence was subject to probation or state the length of the term of probation, and therefore the court did not impose probation as part of his sentence. He contended he was not on probation and the court had no authority to revoke his probation and resentence him. Finding no abuse of discretion or other reversible error, the North Dakota Supreme Court affirmed Alberts' sentence. View "North Dakota v. Alberts" on Justia Law

Austin Thorsteinson was convicted by jury of felony child abuse. In November 2016, a two-year-old child in Thorsteinson’s care suffered injuries that caused bleeding on the brain. A subsequent surgery removed part of the child’s skull to relieve pressure. The child suffered a stroke during hospitalization and tests indicated a portion of the child’s brain will not recover from the injury. Thorsteinson said the injury was from an accidental fall while he was holding the child. He told police the injury resulted from the impact between the child’s head and a hard object in the path of the fall. Thorsteinson argued on appeal the district court erred by admitting evidence of alleged prior bad acts. Thorsteinson further argued the district court failed to give adequate jury instructions on the definition of reckless conduct. Finding no reversible error, the North Dakota Supreme Court affirmed. View "North Dakota v. Thorsteinson" on Justia Law

William Carter appeals from a district court order denying discharge from commitment as a sexually dangerous individual. Carter was convicted of gross sexual imposition in 2004. In February 2017, Carter filed motions requesting a discharge hearing and appointment of an independent examiner. Dr. Erik Fox, the State’s evaluator, filed a report in May and an addendum to that report in September, with an initial recommendation for post community placement. However, the addendum rescinded that recommendation as a result of new information Dr. Fox received during the summer of 2017. Dr. Stacey Benson, the independent examiner, also filed a report. The discharge hearing was held March 19, 2018. On appeal, Carter argues the State failed to meet its burden to prove that he was likely to engage in sexually predatory conduct and that he has difficulty controlling his behavior. The North Dakota Supreme Court found clear and convincing evidence in the record that the three statutory elements and the "Crane" factor were satisfied. Therefore, the Court affirmed the district court’s order denying discharge. View "Interest of Carter" on Justia Law

The State appealed an order granting Robert Vetter's motion to suppress chemical test evidence and motion in limine. Vetter was charged with driving under the influence of alcohol under N.D.C.C. 39-08-01, a class B misdemeanor. He claimed the chemical test of his blood was conducted without a warrant, his consent was based on an inaccurate implied consent advisory, he did not voluntarily consent to the blood test, and therefore the search was unreasonable and violated his constitutional rights. Vetter also filed a motion in limine, arguing the evidence of the chemical test should be excluded under N.D.C.C. 39-20-01(3)(b) because the arresting officer did not read him the full post-arrest implied consent advisory. The North Dakota Supreme Court concluded the district court misapplied the law in interpreting statutory requirements under the implied consent law and the court failed to properly consider the totality of the circumstances to determine whether Vetter voluntarily consented to the blood test. The Court reversed the district court's order and remanded for additional findings and for the court to determine whether Vetter's consent was voluntary. View "North Dakota v. Vetter" on Justia Law

The State appealed a trial court order limiting the admission of video evidence, and an order denying the State's motion to amend the criminal information. In February 2018, Richard Powley was charged with two counts of gross sexual imposition, both class AA felonies. The charges resulted from a series of videos seized from Powley's phone; at least one of the videos depicted sexual acts with the alleged victim. The videos were recorded between June 3, 2017 and June 5, 2017. Before trial, Powley made a motion under N.D.R.Ev. 412, seeking to admit five of the videos in order to demonstrate specific instances of the alleged victim's consensual sexual behavior with Powley. Powley emphasized it was significant all eight videos were recorded "within 44 hours of each other and they need to be viewed in that light." At the hearing the State agreed that Videos 1 through 5 "look[ed] consensual," and submitted Video 6, Video 7, and Video 8 to show the nonconsensual acts giving rise to the gross sexual imposition charges. The State argued those videos depicted the alleged victim unconscious and limp. The State argued Videos 6, 7, and 8 spoke for themselves and therefore there was no need to introduce Videos 1, 2, 3, 4, or 5. The court excluded Videos 1 through 5, 7 and 8, and limited the admission of 6. On appeal, the State argued the district court erred by sua sponte excluding portions of allegedly relevant video and that the court erred by denying the motion to amend the information because the proposed additional charge was not a different offense. The State alternatively requested the North Dakota Supreme Court exercise supervisory authority to review the district court rulings. The Supreme Court concluded the State had no statutory right to appeal these issues, and declined to exercise supervisory authority. The Court therefore dismissed the appeal for lack of jurisdiction. View "North Dakota v. Powley" on Justia Law