Justia North Dakota Supreme Court Opinion Summaries

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

Samuel Hansford appealed a district court's order denying his motion to suppress after a jury found him guilty of gross sexual imposition. At the suppression hearing, the law enforcement agent testified his involvement in the case began when he was called to investigate whether 24-year-old Hansford had sexually assaulted a 16-year-old female who was unconscious at the time. The agent initially made contact with Hansford by going to Hansford's workplace. The agent testified he told Hansford he wanted to interview him but due to privacy issues he did not want to conduct the interview at Hansford's work place. After the agent suggested the interview take place at the police department, Hansford asked if the agent could give him a ride. The agent testified that before giving Hansford a ride, he explained to Hansford that he was not required to come to the police department and that he was not under arrest. Hansford rode unrestrained in an unmarked vehicle to the police station. During the ride, the agent and Hansford engaged in casual conversation. The agent testified that upon arriving at the police department, he and Hansford went into the interview room which was equipped with audio and visual recording capabilities. The agent testified he read a "soft version" of the Miranda warning. When Hansford expressed some confusion, the agent testified he provided Hansford with a card and read him "line for line" each element of the Miranda warning. After going through the card together, the agent testified Hansford acknowledged he understood the Miranda warning. On appeal, Hansford argued incriminating statements were obtained in violation of his Fifth and Sixth Amendment rights. The North Dakota Supreme Court affirmed, concluding Hansford was not in police custody when he made incriminating statements and his statements were voluntary. View "North Dakota v. Hansford" on Justia Law

Alexis Dowdy appealed after she conditionally pled guilty to driving under the influence of alcohol. Dowdy argued the arresting officer improperly added inaccurate and coercive language to the statutorily required implied consent advisory, and she did not voluntarily consent to chemical testing. The district court found Dowdy was read a complete implied consent advisory and she voluntarily consented to chemical testing. Finding no reversible error, the North Dakota Supreme Court affirmed. View "North Dakota v. Dowdy" on Justia Law

Falesteni Ali Abuhamda appealed a trial court order approving pretrial diversion, an order deferring imposition of sentence, and an order denying his motion to dismiss. In March 2017, law enforcement officers executed a search warrant on two stores owned by Abuhamda, seizing items containing Cannabidiol ("CBD"), Delta-9-tetrahydrocannabinol ("THC"), Hashish, and Cannabis (marijuana) as well as paraphernalia used to ingest those substances. Abuhamda was charged with seven counts relating to the confiscated items. Abuhamda moved to dismiss Counts 1, 2, 4, and 5, arguing CBD was neither an illegal drug nor a controlled substance, naturally occurring THC found in CBD products at certain levels is not illegal, CBD products are legal in North Dakota, and paraphernalia is only illegal if specifically used or intended to be used with a controlled substance. Abuhamda simultaneously moved to suppress any evidence seized during the searches of his stores, arguing the searches were unreasonable due to law enforcement's reliance on a federal agency ruling for guidance rather than the laws of North Dakota. At a hearing, the State called a forensic scientist from the North Dakota State Crime Laboratory Division, who testified that CBD and Delta-9-THC were controlled substances under North Dakota law and CBD was a controlled substance under the Federal Controlled Substances Act. The district court denied the motion to dismiss and suppress evidence, holding Abuhamda failed to provide any evidence to dispute or discredit the State's witness, and the potential illegality of the advertisement of alleged drug paraphernalia was a question for the jury. Following the motion hearing, Abuhamda entered a pretrial diversion agreement on Counts 1, 2, and 5, which was accepted by the district court. Abuhamda pleaded guilty on Counts 3, 4, 6, and 7 and the district court entered orders deferring imposition of sentence. He argued on appeal the district court erred in denying his motion to dismiss Counts 1, 2, 4, and 5. The North Dakota Supreme Court dismissed the appeal on Counts 1, 2, and 5 for lack of jurisdiction because the order was not appealable under N.D.C.C. 29-28-06, and the Court declined to supervise. The Court affirmed on Count 4, concluding Abuhamda failed to preserve the issue because the record did not reflect his plea was conditional. View "North Dakota v. Abuhamda" on Justia Law

Allen Lenertz appealed the dismissal of his claim for inverse condemnation against the City of Minot and awarding the City costs and disbursements. Between 2013 and 2014 the City installed a paved street and upgraded the storm water system adjacent to Lenertz's commercial property in southwest Minot. Lenertz's property subsequently suffered three flooding events. In 2016 Lenertz sued the City for inverse condemnation, alleging the City's actions in constructing the street and storm sewer system caused past and future flooding of his property and resulted in a total taking of his property. The City denied a taking occurred and raised affirmative defenses. The North Dakota Supreme Court concluded the district court: (1) did not err in ruling Lenertz established only a partial taking of his property; (2) did not abuse its discretion in denying his proposed expert witness's testimony; and (3) did not err in granting the City judgment under N.D.R.Civ.P. 50. The court did abuse its discretion, however, in awarding the City costs and disbursements. View "Lenertz v. City of Minot N.D." on Justia Law