Volume 985 — North Western Reporter, Second Series

A criminal judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(3).

A district court may infer that an event did not occur on the basis of a witness's testimony that she had no recollection of the event occurring combined with testimony of habit or practice about what she would have done if it had occurred. The Confrontation Clause does not apply to non-testimonial hearsay. Reports concerning the installation and inspection of an Intoxilyzer used to perform chemical breath tests do not contain testimonial statements from the state toxicologist requiring him to be produced at trial.

A district court does not violate North Dakota Supreme Court Rule 52(4) by offering to reschedule a hearing so that a defendant may speak with counsel or by allowing a defendant to withdraw their request to speak with counsel. A withdrawal of a guilty plea after a district court has imposed a sentence is not allowed unless the defendant proves that withdrawal is necessary to correct a manifest injustice.

Rule 54(b), N.D.R.Civ.P., authorizes a district court to direct entry of a judgment adjudicating fewer than all of the claims as final when there is "no just reason for delay." Absent a finality certification under Rule 54(b), a decision adjudicating fewer than all of the claims in a case does not end the action and it may be revised at any time before entry of a final judgment deciding all of the claims. Rule 54(b) does not apply when a judgment decides all of the claims in a case. The district court did not err when it sanctioned an attorney under N.D.R.Civ.P. 11 after the attorney ignored provisions in rules and prior holdings the case. Sanctions on appeal were appropriate when an attorney persisted in groundless arguments without acknowledging obvious deficiencies pointed out by the district court.

A movant must establish a prima facie case for a change of primary residential responsibility justifying a modification by alleging enough evidence for the fact finder to conclude that a material change in circumstances has occurred and that a modification is in the best interests of the children.

Section 22-03-03, N.D.C.C., provides that if parties contractually agree to a limitation on the time to bring a claim, the surety cannot be held beyond that limitation. Section 22-03-03, N.D.C.C., is an exception to the preclusion of contractually altering the limitation on the time to bring a claim in N.D.C.C. § 9-08-05.

Probable cause supporting issuance of a search warrant exists when the facts and circumstances would lead a person of reasonable caution to believe the contraband or evidence sought probably will be found in the place to be searched. Search warrants usually must be served in the daytime. Additional probable cause is required for searches executed at night. Probable cause for a nighttime search exists upon showing the evidence sought might be quickly disposed of if a warrant is not promptly executed