Articles Posted in North Dakota Supreme Court

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

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

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

Garron Gonzalez appeals from an order summarily denying his application for post-conviction relief and an order denying his motion for reconsideration and to conduct discovery. In 2004, Gonzalez pleaded guilty to two counts of gross sexual imposition and was sentenced. On February 27, 2018, after six prior applications for post-conviction relief, Gonzalez, acting pro se, filed his seventh application for post-conviction relief alleging the existence of newly discovered evidence. In his application, Gonzalez claimed newly discovered DNA analysis results were available at the time of the preliminary hearing on the gross sexual imposition charge even though the detective testifying said he had not received the results. Gonzalez also claimed the State withheld a related police report of gross sexual imposition filed by the sister of one of the State's witnesses. Finally, Gonzalez claimed the State withheld the results of the physical examination of the victim in the case, the results of which he claims would not have supported the accusations. Gonzalez argued that had he known about these three pieces of evidence, he would have elected to proceed to trial instead of pleading guilty. He attached no supporting affidavits or documentation to supplement his most recent application. The North Dakota Supreme Court reversed and remanded, concluding the court erred by summarily denying his application sua sponte, and the error was not rectified by the district court's order on reconsideration. View "Gonzalez v. North Dakota" on Justia Law

Melinda Strom appealed an amended criminal judgment and order for restitution. Strom pled guilty to misapplication of entrusted property in excess of $50,000 in violation of N.D.C.C. 12.1-23-07(1). Strom was sentenced to five years, all suspended for three years of supervised probation. Strom argued the district court abused its discretion in awarding restitution because it did not consider her ability to pay as required by N.D.C.C. 12.1-32-08(1). The North Dakota declared the statute unconstitutional in part and affirmed the restitution order and judgment. The Court concluded the district court did not abuse its discretion in fixing the amount of restitution without regard to the defendant's ability to pay. "To clearly state the scope of this decision, it is necessary to articulate what we do not decide here. In this matter, we examine only an award of restitution and not a contempt hearing or probation revocation for non-payment, and thus we limit consideration of ability to pay only in the context of setting the total amount of restitution. We do not completely preclude consideration of ability to pay. There may be times when such consideration may be appropriate, i.e., when determining the time or manner of payment or whether a defendant's failure to pay is willful." View "North Dakota v. Strom" on Justia Law

Alexander Pittenger appealed after a jury found him guilty of corruption and solicitation of a minor and from an order denying a motion to dismiss the charge. At the beginning of the trial the prosecutor requested closure of the courtroom during the juvenile complaining witness' testimony because it was "common practice, and it's provided by statute that the courtroom be closed." Pittenger's attorney objected because "my client has a right to an open and public trial." The district court did not conduct a hearing, make findings, or analyze the appropriate factors, and considered only that the complaining witness was a minor. The North Dakota Supreme Court concluded this was a structural error that required reversal of the criminal judgment. View "North Dakota v. Pittenger" on Justia Law

Branden Lyon appealed an amended judgment entered after his convictions for attempted murder, terrorizing, terrorizing-­domestic violence, and illegal possession of a firearm. After review, the North Dakota Supreme Court conclude Lyon's sentence was illegal because the district court did not act within statutorily prescribed sentencing limits. The amended judgment was reversed and the case remanded for resentencing. View "North Dakota v. Lyon" on Justia Law

MyKennah Lott appealed after she was found guilty of preventing arrest following a bench trial. In January 2017, Lott and an acquaintance were found walking on property owned by the Dakota Access Pipeline. Law enforcement personnel approached the pair and Lott began to "step backwards at a fairly brisk pace" while law enforcement gathered more information. Lott was eventually informed she was under arrest for trespassing. Lott resisted arrest, broke free, and eventually had to be taken to the ground in order to be arrested. After a bench trial, Lott was found guilty of preventing arrest. During sentencing, the district court asked Lott's counsel for a sentencing recommendation. Counsel conferred with Lott and requested fines and fees be waived. Nothing in the record indicated Lott was personally addressed and afforded the opportunity to speak on her behalf during the sentencing phase. On appeal of her conviction and sentence, Lott challenged the sufficiency of the evidence and claimed she was improperly denied an opportunity to address the court during sentencing. The North Dakota Supreme Court affirmed the conviction, vacated the sentence, and remanded for resentencing. View "North Dakota v. Lott" on Justia Law