Volume 989 — North Western Reporter, Second Series

A district court's order on spousal support and contempt is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).

A criminal judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(3) and (4).

The district court decides the qualifications of the witness to express an opinion on a given topic. The decision whether to admit expert witness testimony rests within the court's discretion. For a lesser-included-offense instruction, there must be evidence on which a jury could rationally find beyond a reasonable doubt that the defendant is not guilty of the greater offense and to find beyond a reasonable doubt that the defendant is guilty of the lesser. It also must be impossible to commit the greater offense without committing the lesser. While a sexual contact charge may be a lesser included offense contained within a sexual act charge, the subsections of both offenses must be compatible and the evidence must support an inclusion. An alleged error with jury instructions will be reviewed for obvious error when the instructions were not objected to at trial and proposed instructions were not provided to the district court. Voluntary intoxication is irrelevant to a crime of general intent.

When a party asserts prosecutorial misconduct for the first time on appeal, this Court may review for obvious error. Questioning by the State regarding relevant evidence in the case may not amount to a prosecutor stating his personal belief on a defendant's claim of self-defense nor prosecutorial misconduct. Questioning by the State will not warrant reversal when such questions were invited by the defense. Questions regarding potential weaknesses of a defendant's case does not amount to burden shifting, particularly when the jury is reminded numerous times throughout trial that the burden is on the State. Non-public exchanges, such as brief sidebars or bench conferences, between counsel and the court on routine evidentiary issues, technical legal issues, and administrative issues are not public trial violations. The district court does not abuse its discretion by allowing expert testimony when it found the testimony was relevant, not overly cumulative, and properly noticed.