Articles Posted in North Dakota Supreme Court

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Cody Michael Atkins appealed a district court's order summarily dismissing his application for post-conviction relief. In 2015, Atkins plead guilty to gross sexual imposition and was sentenced to 20 years with the North Dakota Department of Corrections with five years suspended for 10 years and 10 years of supervised probation. Atkins' conviction was affirmed on appeal. In March 2016, Atkins filed a petition for post-conviction relief, alleging ineffective assistance of counsel. In April 2016, the court entered a scheduling order but Atkins failed to timely file a brief and the petition was dismissed. In September 2016, Atkins filed an identical petition for post-conviction relief. In October 2016, the court entered a scheduling order and after being granted an extension, Atkins filed a supplemental brief in March 2017. Atkins' brief included several conclusory statements alleging his counsel was defective and a request for an evidentiary hearing. In April 2017, the State filed a motion and brief in support of summary dismissal. The district court scheduled an evidentiary hearing for June 2017. Atkins failed to respond to the State's motion. Atkins did not file any affidavits or other comparable means of evidence in support of the allegations contained in his brief. On May 5, 2017, the district court granted the motion for summary dismissal. Atkins' supplemental brief listed six ways in which he is entitled to post-conviction relief; Atkins argued the State's failure to refute the factual assertions in his brief relieved him of the burden of producing competent, admissible evidence prior to the evidentiary hearing. Because Atkins was put to his proof when the State moved for summary disposition, and Atkins did not meet his minimal burden of supporting his application with competent, admissible evidence raising an issue of material fact, the North Dakota Supreme Court affirm the district court's order summarily dismissing his application for post-conviction relief. View "Atkins v. North Dakota" on Justia Law

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Michael Truelove appeals from a criminal judgment entered after a jury found him guilty of gross sexual imposition ("GSI"), terrorizing, interfering with a telephone during an emergency call, and aggravated assault. ruelove met HFP at Dempsey's, a bar in downtown Fargo. HFP was working as a cocktail server, and Truelove was a patron that night (although he was also employed by Dempsey's as a custodian). They had not interacted prior to that night. HFP wrote her phone number on Truelove's pizza box. Truelove left, but after they exchanged a few text messages, he decided to come back to Dempsey's to meet her. HFP's shift ended, and the two of them consumed alcohol at Dempsey's. Toward the end of the night, HFP offered Truelove a ride home. The two of them walked to HFP's car, kissed, and drove to Truelove's apartment in South Fargo. HFP accompanied Truelove into his studio apartment. Once in the apartment, Truelove went into the bathroom, and HFP went to lie down on the mattress. After this point, the testimony of HFP and Truelove differed. Challenging only the GSI conviction, Truelove argued there was insufficient evidence to sustain his conviction. The North Dakota Supreme Court affirmed, concluding there was sufficient evidence in the record. View "North Dakota v. Truelove" on Justia Law

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Anoulak Thornsavan appealed an order denying his motion to suppress and from the civil judgment forfeiting $127,930 to North Dakota. n July 2015, Officer Mason Ware pulled over Thornsavan, along with his passenger, Saravanh Phommakhy, on Interstate 94. Ware stopped Thornsavan because it appeared to him that the car had excessive window tint. Prior to the stop, Ware checked the vehicle registration in his database, which indicated that the vehicle was registered to an individual born in 1937. Ware noted that both Thornsavan and Phommakhy looked as though they were in their late 20's or early 30's. Walking toward the stopped car, Ware saw a pillow, blanket, and backpack in the backseat of the car, but not any luggage. Soon after making contact, Ware asked for licenses and registration. When Thornsavan reached into his center console to obtain his information, Ware saw a "bundle of cash" in the console with a $50 bill on top of the stack and a $20 bill on the bottom. Thornsavan then gave Ware a photocopy of the vehicle title. The photocopy indicated that the car had been purchased just four days prior. Ware testified that Thornsavan and Phommakhy appeared nervous, avoided eye contact, stuttered, and displayed tremors in their hands. Ware asked Thornsavan about the contents of his car just prior to issuing a warning citation. A later search of the vehicle revealed two duffle bags containing vacuum-sealed blocks of cash with dryer sheets in between the sealed layers. The total cash amount found and seized by law enforcement was $127,930, which included $930 found in the center console. Thornsavan filed a motion to suppress his statements and the money found. The district court denied the motion to suppress and ordered the money to be forfeited. Thornsavan argued that law enforcement lacked reasonable suspicion to detain him or his car beyond the initial traffic stop and that his statements and the money seized had to be suppressed. The North Dakota Supreme Court found reasonable suspicion to extend the traffic stop and a Miranda warning was not required. View "North Dakota v. $127,930 United States Currency" on Justia Law

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Ronald Rogers, Jr., appealed a judgment denying his application for post-conviction relief and orders denying his post-hearing motions to amend the findings of fact and for a new trial. Rogers conditionally pled guilty to murdering his wife and to willful disturbance of a dead body, reserving the right to appeal the district court's denial of his motion to suppress his confession to police based on a lack of Miranda warnings and involuntariness. Looking at the totality of the facts, the North Dakota Supreme Court concluded Rogers' confession was voluntary. Because the district court did not err in ruling that Rogers received effective assistance of trial counsel or abuse its discretion in denying the post-hearing motions, the Supreme Court affirmed the district court's judgment denying the request for post-conviction relief. View "Rogers v. North Dakota" on Justia Law

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Anjelo Sheperd appealed his conviction entered after a bench trial on stipulated facts, finding him guilty of patronizing a minor for commercial sexual activity. Law enforcement arrested Sheperd as a part of a multi-agency sting operation targeted at apprehending individuals paying, or attempting to pay, for sex with minors. Law enforcement posted an advertisement on Backpage.com. The advertisement impliedly sought sexual encounters with men, but did not reference involvement with a minor. Sheperd responded to the advertisement. A text message exchange between Sheperd and an undercover officer, purporting to be a female, discussed rates for sexual activities. Later in the text message exchange, the undercover officer told Sheperd "she" was almost seventeen. Sheperd arrived at the sting location, set up at a hotel in Fargo, and was arrested and charged. On appeal, Sheperd argued N.D.C.C. 12.1-41-06(1)(a) required the presence of a minor and because no actual minor was involved in this case, the State did not meet its burden of proof. Sheperd further argued the North Dakota Supreme Court should have decided North Dakota v. Davison, 900 N.W.2d 66, differently. The Supreme Court found that under the plain language of N.D.C.C. 12.1-41-06(1)(a), an individual could be convicted of an offense if the agreement was made with someone other than a minor. "This construction interprets the statute in a practical manner, giving consideration to the context of the statute and the purpose for which it was enacted. This construction also targets those who intentionally seek out children as their sexual objects, as provided in the comments to Section 7 of the Uniform Act on Prevention of and Remedies for Human Trafficking drafted by the National Conference of Commissioners on Uniform State Laws." The Court was not persuaded that "Davidson" should have been decided differently. View "North Dakota v. Sheperd" on Justia Law

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Phillip Martinson appealed a district court judgment affirming an agency decision to suspend his driver's license for 180 days for being in actual physical control of a motor vehicle while under the influence of intoxicating liquor, a class C felony. The North Dakota Supreme Court determined a fact-finder could reasonably conclude the driveway at issue, although private, was an area "to which the public has a right of access for vehicular use." Accordingly, the Court affirmed. View "Martinson v. N.D. Dep't of Transportation" on Justia Law

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Danny Myers appealed a district court order denying his motion to correct his sentence under N.D.R.Crim.P. 35(a)(2). Myers sought to retroactively apply 2015 legislative amendments, which removed class C felony aggravated assault from the statutory provision requiring a person to serve eighty-five percent of a sentence of incarceration. The North Dakota Supreme Court concluded the court did not abuse its discretion in denying his motion under N.D.R.Crim.P. 35(a)(2) because his sentence did not contain an arithmetical, technical, or other clear error to correct. View "North Dakota v. Myers" on Justia Law

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Barry Garcia appealed a district court order summarily dismissing his application for post-conviction relief. A juvenile petition was filed alleging Garcia had committed murder, attempted robbery, aggravated assault, and criminal street gang crime. At the State's request, the court transferred Garcia to adult court for trial. At trial, the district court dismissed the robbery and criminal street gang charges. The jury found Garcia guilty of murder, a class AA felony, and aggravated assault, a class C felony. After a sentencing hearing, the district court sentenced Garcia to life imprisonment without parole on the murder conviction, and to a concurrent five years' imprisonment on the aggravated assault conviction. Garcia appealed, arguing his sentence constituted cruel and unusual punishment under the Eighth Amendment to the United States Constitution. The North Dakota Supreme Court concluded the district court's 1996 sentencing of Garcia to life imprisonment without parole did not violate the Eighth Amendment. The Court affirmed the district court's order summarily dismissing Garcia's application for post-conviction relief. View "Garcia v. North Dakota" on Justia Law

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Charles Mayland appealed his conviction entered upon a jury finding him guilty of being in actual physical control of a motor vehicle while under the influence of intoxicating liquor fourth-offense, a class C felony. The North Dakota Supreme Court held a defendant fails to preserve a jury instruction issue for appellate review when he stipulates to the exclusion of a jury instruction regarding prior convictions. Furthermore, the crime of actual physical control may occur on private property, including a private driveway. Here, the parties stipulated to the existence of Mayland's prior convictions, and Mayland's driveway was within the scope of the statute. Therefore, the Supreme Court affirmed Mayland's conviction. View "North Dakota v. Mayland" on Justia Law

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In 2016, a Ward County North Dakota Narcotics Task Force Officer observed a black Dodge Charger traveling east bound in the west bound lane near 36th Avenue NE in Minot. A Minot police officer initiated a traffic stop for the traffic violation; the task force officer was traveling in an unmarked patrol vehicle. The Charger continued for a few blocks before coming to a stop. Neither the State nor Dustin Lark disputed Lark was lawfully stopped when he was pulled over for driving in the wrong lane. Lark was arrested for unlawful possession of a schedule III drug with intent to deliver. Lark filed a motion to suppress evidence of items found during that stop. The State opposed the motion. The district court held a hearing on the suppression motion at which one of the officers testified. Both parties questioned the officer and filed post-hearing briefs. The district court granted Lark's motion to suppress. The district court found the initial search was permissible under the automobile exception; however, the district court also found probable cause ceased to exist after receiving the inconclusive field test results of suspected crack cocaine. The North Dakota Supreme Court reversed, finding the district court erred when it determined probable cause to search ceased upon receiving the inconclusive drug test result without considering the totality of the circumstances in an objective manner. View "North Dakota v. Lark" on Justia Law