New opinions: November 5, 2025

State v. Cotton 2025 ND 191
Docket No.: 20250152
Filing Date: 11/5/2025
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Jensen, Jon J.

Highlight: District courts have discretion to issue consecutive terms of imprisonment for felonies, but N.D.C.C. § 12.1-32-11 limits the court's authority for misdemeanors. When sentenced only for misdemeanors, a defendant may not be consecutively sentenced to more than one year, unless the defendant is being sentenced for two or more class A misdemeanors and each was committed as part of a different course of conduct or each involved a substantially different criminal objective. Crimes are not necessarily part of the same course of conduct simply because they were committed close in time or by similar means.

State v. Cotton 2025 ND 191
Docket No.: 20250153
Filing Date: 11/5/2025
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Jensen, Jon J.

Highlight: District courts have discretion to issue consecutive terms of imprisonment for felonies, but N.D.C.C. § 12.1-32-11 limits the court's authority for misdemeanors. When sentenced only for misdemeanors, a defendant may not be consecutively sentenced to more than one year, unless the defendant is being sentenced for two or more class A misdemeanors and each was committed as part of a different course of conduct or each involved a substantially different criminal objective. Crimes are not necessarily part of the same course of conduct simply because they were committed close in time or by similar means.

State v. Cotton 2025 ND 191
Docket No.: 20250154
Filing Date: 11/5/2025
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Jensen, Jon J.

Highlight: District courts have discretion to issue consecutive terms of imprisonment for felonies, but N.D.C.C. § 12.1-32-11 limits the court's authority for misdemeanors. When sentenced only for misdemeanors, a defendant may not be consecutively sentenced to more than one year, unless the defendant is being sentenced for two or more class A misdemeanors and each was committed as part of a different course of conduct or each involved a substantially different criminal objective. Crimes are not necessarily part of the same course of conduct simply because they were committed close in time or by similar means.

State v. Cotton 2025 ND 191
Docket No.: 20250155
Filing Date: 11/5/2025
Case Type: Appeal - Criminal - Misc. Misdemeanor
Author: Jensen, Jon J.

Highlight: District courts have discretion to issue consecutive terms of imprisonment for felonies, but N.D.C.C. § 12.1-32-11 limits the court's authority for misdemeanors. When sentenced only for misdemeanors, a defendant may not be consecutively sentenced to more than one year, unless the defendant is being sentenced for two or more class A misdemeanors and each was committed as part of a different course of conduct or each involved a substantially different criminal objective. Crimes are not necessarily part of the same course of conduct simply because they were committed close in time or by similar means.

Highlight: The Eighth Amendment to the United States Constitution and Article I, § 11 of the North Dakota Constitution respectively prohibit infliction of "cruel and unusual punishments" and "cruel or unusual punishments." A punishment in a non-capital case that is grossly disproportionate to the offense is cruel and unusual. The disproportionality principle is narrow. It forbids only extreme sentences.

Generally, unless there is a statute to the contrary, it is within the trial court's sound discretion whether a sentence should run concurrently with or consecutively to another sentence.

The Court will review a claim that a sentence is illegal even when it was not raised below, but a significant distinction exists between claims of error regarding a sentence imposed in a procedurally or factually flawed manner, which can be waived, from an unauthorized sentence that could not lawfully be imposed under any circumstances in the particular case.

Smith v. State 2025 ND 189
Docket No.: 20250127
Filing Date: 11/5/2025
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Jensen, Jon J.

Highlight: An attorney's representation of a criminal defendant fell below an objective
standard of reasonableness when the attorney failed to exclude certain evidence
under N.D.R.Ev. 404(b) prior to trial, failed to object to the evidence at trial, failed
to request a limiting or curative instruction after the evidence was introduced,
and failed to develop an obvious error argument regarding the evidence on
direct appeal.

The district court erred in concluding a criminal defendant was prejudiced by
counsel's representation without first assessing counsel's errors within the
context of the remaining evidence properly presented and the overall conduct of
the trial to determine whether there was a reasonable probability that the
outcome of the proceeding would have been different.

The case is remanded to supplement the record with additional evidence from
the original record, if possible, and to permit the district court to address all of
the grounds for relief raised by the applicant in his postconviction proceeding.

State v. Miller 2025 ND 188
Docket No.: 20250174
Filing Date: 11/5/2025
Case Type: Appeal - Criminal - Assault
Author: McEvers, Lisa K. Fair

Highlight: Orders revoking probation and resentencing defendant for aggravated assault and violations of a domestic violence protection order are affirmed in part, reversed in part, and remanded.

In probation revocation proceedings, a district court need not make factual findings explaining its decision to revoke probation and sentence incarceration instead of alternative sanctions. On appeal, a party may not challenge an order or judgment not designated in the notice of appeal. A party may not collaterally attack a final decision, that was not appealed, in subsequent proceedings.

State v. Miller 2025 ND 188
Docket No.: 20250175
Filing Date: 11/5/2025
Case Type: Appeal - Criminal - Assault
Author: McEvers, Lisa K. Fair

Highlight: Orders revoking probation and resentencing defendant for aggravated assault and violations of a domestic violence protection order are affirmed in part, reversed in part, and remanded.

In probation revocation proceedings, a district court need not make factual findings explaining its decision to revoke probation and sentence incarceration instead of alternative sanctions. On appeal, a party may not challenge an order or judgment not designated in the notice of appeal. A party may not collaterally attack a final decision, that was not appealed, in subsequent proceedings.

Overton v. Overton 2025 ND 187
Docket No.: 20250189
Filing Date: 11/5/2025
Case Type: Appeal - Civil - Protection/Restraining Order
Author: Crothers, Daniel John

Highlight: Procedural due process does not require the district court to ensure incarcerated parties to civil litigation are present at hearings.

A hearing for a domestic violence protection order does not implicate confrontation clause rights protected by the Sixth Amendment.

State v. Barrett 2025 ND 186
Docket No.: 20250114
Filing Date: 11/5/2025
Case Type: Appeal - Criminal - Sexual Offense
Author: Crothers, Daniel John

Highlight: A jury's question or request to view evidence during deliberations shall take place in open court, unless the defendant agrees otherwise.

For a closure of the courtroom to comply with the constitution, the district court must make correct and adequate findings on the closure.

A violation of the constitutional right to a public trial can seriously affect the fairness, integrity, or public reputation of judicial proceedings, warranting reversal.

State v. Watterud 2025 ND 185
Docket No.: 20250082
Filing Date: 11/5/2025
Case Type: Appeal - Criminal - Sexual Offense
Author: Crothers, Daniel John

Highlight: A victim's testimony about misconduct occurring over several years can be sufficient to support a conviction.

An improper communication to a jury in deliberations must actually prejudice the defendant to warrant a reversal of a conviction.

Highlight: A professional negligence action against a physician, nurse, or hospital generally requires an expert affidavit. Generally, decisions to provide medication, refuse to provide medication, or discharge a patient are medical decisions requiring the expertise of medical professionals.

In an "obvious occurrence" case, expert testimony is unnecessary if a layperson can find negligence without the benefit of an expert opinion. Determining whether to discharge a patient or provide pain medication requires medical expertise beyond the common understanding of a layperson.

The tort of intentional infliction of emotional distress requires (1) extreme and outrageous conduct that is (2) intentional or reckless and that causes (3) severe emotional distress. The district court must first determine if, as a matter of law, the defendant's conduct is sufficiently extreme and outrageous to permit recovery. This standard is strenuously high and requires conduct beyond all possible bounds of decency. The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.

State v. Weber 2025 ND 183
Docket No.: 20250098
Filing Date: 11/5/2025
Case Type: Appeal - Criminal - Sexual Offense
Author: Bahr, Douglas Alan

Highlight: A party bears the burden to correctly label its motion as to inform the court of the relief sought. The district court did not err when it treated appellant's motion as a request for relief under N.D.R.Crim.P. 35(a) based on its label.

An as-applied challenge to probation conditions is not ripe for review when the individual subject to the probation conditions is still incarcerated.

This Court declines to address a facial challenge to the constitutionality of a statute without the benefit of adversarial briefing.

State v. Wilson 2025 ND 182
Docket No.: 20250169
Filing Date: 11/5/2025
Case Type: Appeal - Criminal - Assault
Author: Bahr, Douglas Alan

Highlight: A probationer's right to counsel does not arise from the Sixth Amendment but rather from North Dakota Rule of Criminal Procedure 32(f)(3)(A)(iii). Because of the statutory origin of a probationer's right to counsel at a revocation hearing, the full panoply of rights due a defendant in a criminal proceeding does not apply.

On review of a district court's finding that a probationer voluntarily, knowingly, and intelligently waived the right to counsel, we apply a clearly erroneous standard.

Interest of M.P. 2025 ND 181
Docket No.: 20250320
Filing Date: 11/5/2025
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: The juvenile court's orders terminating parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Interest of A.P. 2025 ND 181
Docket No.: 20250321
Filing Date: 11/5/2025
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: The juvenile court's orders terminating parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Interest of C.P. 2025 ND 181
Docket No.: 20250322
Filing Date: 11/5/2025
Case Type: Appeal - Juvenile - Termination of Parental Rights
Author: Per Curiam

Highlight: The juvenile court's orders terminating parental rights is summarily affirmed under N.D.R.App.P. 35.1(a)(2).