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State v. Borner

Supreme Court of North Dakota

August 29, 2013

State of North Dakota, Plaintiff and Appellee
v.
Cody Borner, Defendant and Appellant

Appeal from the District Court of Mercer County, South Central Judicial District, the Honorable Bruce A. Romanick, Judge.

Jessica J. Binder, for plaintiff and appellee.

Michael R. Hoffman, for defendant and appellant.

OPINION

Maring, Justice.

[¶ 1] Cody Borner appeals the trial court's judgment of conviction after a jury found him guilty of two counts of conspiracy to commit murder. He argues the criminal information failed to charge him with the purported offense of conspiracy to commit murder. We hold that the charge of conspiracy to commit murder under N.D.C.C. §§ 12.1-06-04 and 12.1-16-01(1)(b) is not a cognizable offense. We reverse the criminal judgment.

I

[¶ 2] Borner and Richard Whitman were charged with two counts of conspiracy to commit murder. The State charged Borner and Whitman with conspiracy to commit murder under N.D.C.C. §§ 12.1-06-04, criminal conspiracy, and 12.1-16-01(1)(b), extreme indifference murder, alleging in the information Borner agreed with another to "willfully engage in or cause circumstances manifesting extreme indifference to the value of human life."

[¶ 3] At a pretrial hearing, the State requested the criminal information be amended to specify the culpability required to conspire to commit extreme indifference murder includes "knowingly" rather than "willfully." The amended criminal information stated:

On or about the 31st day of January, 2012, in the City of Beulah, in Mercer County, North Dakota, the above named Defendants committed the offenses of CONSPIRACY TO COMMIT MURDER (2 COUNTS), in violation of Section 12.1-06-04 and 12.1-16-01[(1)](b) of the North Dakota Century Code....
COUNT 1 - CONSPIRACY TO COMMIT MURDER:
That the Defendants did then and there agree with one another to knowingly engage in or cause circumstances manifesting extreme indifference to the value of human life, and one person did an overt act, including, but not limited to, appearing at the Padilla apartment with a loaded assault rifle and loaded pistol; brandishing firearms at Michael Padilla; weapons were fired at Michael Padilla inside the residence multiple times, killing Michael Padilla; the Defendants fled the scene after the shooting and showed no deference to their victims.
Class "AA" Felony Penalty Section: 12.1-16-01(1)[, ] N.D.C.C.
COUNT 2 - CONSPIRACY TO COMMIT MURDER:
That the Defendants did then and there agree with one another to knowingly engage in or cause circumstances manifesting extreme indifference to the value of human life, and one person did an overt act, including, but not limited to, appearing at the Padilla apartment with a loaded assault rifle and loaded pistol; brandishing firearms at Timothy Padilla; weapons were fired at Timothy Padilla inside the residence multiple times, injuring Timothy Padilla; the Defendants fled the scene after the shooting and showed no deference to their victims.
CLASS "AA" Felony Penalty Section: 12.1-16-01(1)[, ] N.D.C.C.

[¶ 4] Borner did not object to the amended criminal information. In the proposed jury instructions, the trial court included in the definition of conspiracy to commit murder that "conspiracy to commit murder requires an agreement to either cause murder or cause death." The State argued the agreement was to create circumstances manifesting an extreme indifference to the value of human life not an agreement to commit murder and an agreement to commit murder was not an essential element of the charge. Agreeing with the trial court, Borner argued an agreement to create circumstances manifesting an extreme indifference constituted conspiracy to commit reckless endangerment. Further, Borner argued under N.D.C.C. § 12.1-16-01, "there has to be the agreement to commit the murder and circumstances manifesting extreme indifference is the vehicle by which that was intended." The State also requested the definition of murder be excluded from the jury instructions.

[¶ 5] The final jury instructions defined conspiracy to commit murder as follows:

A person is guilty of conspiracy to commit murder if the person agreed with another to knowingly engage in or cause conduct which, in fact, constitutes the offense of murder of another under circumstances manifesting extreme indifference to the value of human life, and one party to that agreement did an overt act to effect an objective of the conspiracy.

As to count 1, the jury instructions provided the State must prove beyond a reasonable doubt that Borner and Whitman "[a]greed with each other to knowingly engage in or cause conduct constituting the offense of [m]urder under circumstances manifesting extreme indifference to the value of Michael Padilla's life." A similar instruction was given in regard to count 2 concerning Timothy Padilla. Borner did not object to the final jury instructions.

[¶ 6] At trial, after the State's case-in-chief, Whitman moved for a judgment of acquittal arguing the State failed to prove beyond a reasonable doubt the defendants agreed to commit murder. Borner concurred in the motion. The trial court denied the motion, and the jury, subsequently, found Borner guilty of both counts of conspiracy to commit murder.

II

[¶ 7] Borner argues (1) the amended criminal information was defective because it failed to charge him with an offense, (2) the jury instructions failed to correct the defect in the amended information and inadequately advised the jury of an offense for which he could be found guilty, and (3) the evidence was insufficient to support a finding of guilt because there was no evidence that Borner knowingly agreed to willfully cause the death of any person. The dispositive issue in this case is whether the crime of conspiracy to commit extreme indifference murder is a cognizable offense under North Dakota law. In other words, if a co-conspirator agrees to create circumstances manifesting an extreme indifference to the value of human life, but does not agree to cause death, can he be charged with conspiracy to commit murder. We conclude conspiracy to commit murder requires a finding of intent to cause death and cannot be based on the theory of murder under N.D.C.C. § 12.1-16-01(1)(b), extreme indifference murder.

[¶ 8] Borner was charged with conspiracy to commit murder in violation of N.D.C.C. §§ 12.1-06-04 and 12.1-16-01(1)(b). Borner argues the State must allege he had the intent to cause death under the statutes charged. The State disagrees, arguing a defendant may be found guilty of conspiracy to commit murder if he agrees with another to engage in conduct constituting murder under circumstances manifesting an extreme indifference to the value of human life. The State argues it does not need to prove an intent to cause death. Whether conspiracy to commit extreme indifference murder is a cognizable crime is a question of statutory interpretation.

[¶ 9] Section 12.1-06-04(1), N.D.C.C., states: "A person commits conspiracy if he agrees with one or more persons to engage in or cause conduct which, in fact, constitutes an offense or offenses, and any one or more of such persons does an overt act to effect an objective of the conspiracy." "Construction of a criminal statute is a question of law, fully reviewable by this Court." State v. Laib, 2002 ND 95, ¶ 13, 644 N.W.2d 878. The primary goal of interpreting a statute is to ascertain the legislature's intent. Id. We must first look to the statute's language and "give meaning and effect to every word, phrase, and sentence." Id.; see N.D.C.C. § 1-02-03. If a statute is susceptible to differing but rational meanings, it is ambiguous and extrinsic aids may be considered to ascertain the legislature's intent. Laib, at ¶ 13; see N.D.C.C. § 1-02-39. "We also construe criminal statutes to avoid ludicrous and absurd results." Laib, at ¶ 13; see N.D.C.C. § 1-02-38(3). Because the conspiracy statute, N.D.C.C. § 12.1-06-04(1), could be interpreted in two rational ways, we conclude it is ambiguous.

[¶ 10] In 1971, the North Dakota Legislative Assembly sought to revise the substantive criminal law in North Dakota. H.C.R. 3050, 1971 N.D. Sess. Laws 1392. The Committee of Judiciary B, assigned to carry out the revision, used the proposed Federal Criminal Code as a model for the revised code. Minutes of the Interim Comm. on Judiciary "B" 28 (Jan. 24-25, 1972); see also A Hornbook to the North Dakota Criminal Code, 50 N.D. L. Rev. 639, 639 n.7 (1974) [hereinafter " Hornbook "] (discussing the rationale for accepting the proposed Federal Criminal Code as a model for North Dakota's revised criminal code). Therefore, if the North Dakota code does not vary in substance from its federal counterpart, when confronted with a question of statutory interpretation, "we are guided by both the drafter's official comments to the proposed Federal Criminal Code and the relevant legislative history." State v. Knowels, 2002 ND 62, ¶ 9, 643 N.W.2d 20; see State v. Bower, 442 N.W.2d 438, 440 (N.D. 1989); State v. Haugen, 392 N.W.2d 799, 804 (N.D. 1986).

[¶ 11] Section 12.1-06-04, N.D.C.C., is drawn from Section 1004(1) of the proposed Federal Criminal Code. State v. Rambousek, 479 N.W.2d 832, 834-35 (N.D. 1992); Hornbook, 50 N.D. L. Rev. at 685 n.360. In turn, the proposed Federal Criminal Code Working Papers rely on the tentative drafts to the Model Penal Code for interpretation of the intent and culpability required to commit the crime of conspiracy. See I Working Papers of the Nat'l Comm'n on Reform of Federal Criminal Laws 387-91 (1970) [hereinafter " Working Papers "]. To aid in the interpretation of ambiguous statutes, we may rely on "circumstances under which the statute was enacted, " "legislative history, " and "common law or former statutory provisions, including laws upon the same or similar subjects." N.D.C.C. § 1-02-39.

[¶ 12] Conspiracy is an inchoate crime that is completed upon an agreement and an "overt act in pursuance of the conspiracy by any party thereto." 2 Wayne R. LaFave, Substantive Criminal Law § 12.1(c), at 263 (2d ed. 2003) (footnotes omitted) [hereinafter " Substantive Criminal Law "]. However, "conspiracy defies division into the classic elements of criminal act and criminal intent." Developments in the Law: Criminal Conspiracy, 72 Harv. L. Rev. 922, 935 (1959). "Few aspects of present conspiracy law are more productive of confusion and controversy than those surrounding the issue of intent." I Working Papers, at 387 (discussed in Introductory Memorandum and Excerpts from Consultant's Report on Conspiracy and Organized Crime: §§ 1004-1005). "[I]t is useful to note that there are really two intents required for the crime of conspiracy": (1) an intent to agree, and (2) "an intent to achieve a particular result which is criminal." Substantive Criminal Law § 12.2(c)(1) and (2), at 275-76 (footnotes omitted). In considering the intent underlying conspiracy, the official commentary to the proposed Federal Criminal Code states it is necessary to have an "intent that conduct constituting a crime be performed." See I Working Papers, at 389. Other jurisdictions require an intent to agree and an intent that the conduct constituting the crime be performed. See People v. Swain, 909 P.2d 994, 997 (Cal. 1996) (holding "[t]o sustain a conviction for conspiracy to commit a particular offense, the prosecution must show not only that the conspirators intended to agree but also that they intended to commit the elements of that offense "); Palmer v. People, 964 P.2d 524, 529 (Colo. 1998) (holding conspiracy is a specific intent crime requiring an intent to agree and "the specific intent to cause the result of the crime to which the conspirators agreed"); State v. Greene, 847 A.2d 750, 770 (Conn. 2005) (holding conspiracy is a specific intent crime requiring an intent to agree and an " inten[t] to commit the elements of the offense "); People v. Gilbert, 455 N.W.2d 731, 735 (Mich. Ct. App. 1990) (holding conspiracy is a specific intent crime requiring an agreement between two or more persons to perform the crime in question); State v. Baca, 950 P.2d 776, 786 (N.M. 1997) (holding conspirators must intend to agree and intend to achieve a particular result).

[¶ 13] North Dakota's criminal conspiracy statute requires proof "first, that the accused agreed 'to engage in or cause conduct;' second, that this particular conduct 'in fact, constitutes an offense or offenses;' and third, that a person with whom he has agreed has done 'an overt act to effect an objective of the conspiracy.'" Hornbook, 50 N.D. L. Rev. at 685-86 (quoting N.D.C.C. § 12.1-06-04). Therefore, under the second prong, the agreed upon conduct must be criminal. Hornbook, at 686 n.365.

[¶ 14] Here, the State alleged Borner and Whitman agreed to engage in conduct causing circumstances manifesting an extreme indifference to the value of human life. By agreeing to engage in conduct that causes circumstances manifesting an extreme indifference to the value of human life, the State argues Borner agreed to engage in conduct that constitutes the offense of murder under N.D.C.C. § 12.1-16-01(1)(b). We disagree.

[¶ 15] The Model Penal Code defines conspiracy as follows:

A person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he:
(a) agrees with such other person or persons that he or one or more of them will engage in conduct that constitutes such crime or an attempt or solicitation to commit such crime.

American Law Institute, Model Penal Code and Commentaries § 5.03, at 382 (1985) [hereinafter "Model Penal Code and Commentaries"]. Under the Model Penal Code, the requisite intent for conspiracy is explained as:

[I]n relation to those elements of substantive crimes that consist of proscribed conduct or undesirable results of conduct, the Code requires purposeful behavior for guilt of conspiracy, regardless of the state of mind required by the definition of the substantive crime. If the crime is defined in terms of prohibited conduct, such as the sale of narcotics, the actor's purpose must be to promote or facilitate the engaging in of such conduct by himself or another. If it is defined in terms of a result of conduct, such as homicide, his purpose must be to promote or facilitate the production of that result. Thus, it would not be sufficient, as it is under the attempt provision of the Code, if the actor only believed that the result would be produced but did not consciously plan or desire to produce it.

Id. at 407 (emphasis added). Using an example discussed in the Model Penal Code and Commentaries, one treatise explains the intent required to commit the offense of conspiracy to commit murder:

To take the example given by the Model Penal Code draftsmen, assume that two persons plan to destroy a building by detonating a bomb, though they know and believe that there are inhabitants in the building who will be killed by the explosion. If they do destroy the building and persons are killed, they are guilty of murder, but this is because murder may be committed other than with an intent-to-kill mental state. Their plan constitutes a conspiracy to destroy the building, but not a conspiracy to kill the inhabitants, for they did not intend the latter result. It follows, therefore, that there is no such thing as a conspiracy to commit a crime which is defined in terms of recklessly or negligently causing a result.

Substantive Criminal Law § 12.2(c)(2), at 278 (emphasis added) (footnotes omitted) (citing Model Penal Code and Commentaries § 5.03, at 408). Therefore, "when recklessness or negligence suffices for the actor's culpability with respect to a result element of a substantive crime, as for example when homicide through negligence is made criminal, there could not be a conspiracy to commit that crime." Model Penal Code and Commentaries § 5.03, at 408.

[¶ 16] The drafters of the proposed Federal Criminal Code and the North Dakota statute adopted amended conspiracy language. See Final Report of the Nat'l Comm'n on Reform of Federal Criminal Laws § 1004, at 70 (1970); N.D.C.C. § 12.1-06-04(1). The proposed Federal Criminal Code provided: "A person is guilty of conspiracy if he agrees with one or more persons to engage in or cause the performance of conduct which, in fact, constitutes a crime or crimes, and any one or more of such persons does an act to effect an objective of the conspiracy." Final Report of the Nat'l Comm'n on Reform of Federal Criminal Laws, at 70. The North Dakota criminal conspiracy statute provides: "A person commits conspiracy if he agrees with one or more persons to engage in or cause conduct which, in fact, constitutes an offense or offenses, and any one or more of such persons does an overt act to effect an objective of the conspiracy." N.D.C.C. § 12.1-06-04(1).

[¶ 17] The State argues it was not required to prove an intent to kill because extreme indifference murder does not require a "specific intention to cause death" and, if intent to kill is a requirement of conspiracy to commit murder, extreme indifference murder would not be applicable under conspiracy as it would always be conspiracy to commit intentional murder. Borner argues the conspirators must agree and intend to cause the death of another. As in this case, "[c]onfusion is most likely to arise in those cases where the objective of the conspiracy, if achieved, is itself a crime, for under such circumstances the mental state for that crime must also be taken into account." Substantive Criminal Law § 12.2(c)(2), at 277. One scholar stated:

[I]t is a broad rule of our Common Law that mens rea can be either the state of mind of the man who intends the consequences of his conduct, or the state of mind of the man who realizes what the consequences of his conduct may be and who... is reckless or indifferent to them, that the crime of attempt requires a mens rea of the former kind exclusively. So it is with criminal conspiracy. Criminal conspiracy involves a specific intent to commit a particular act, the perpetration of which the state desires to forestall.

Albert J. Harno, Intent in Criminal Conspiracy, 89 U. Pa. L. Rev. 624, 635 (1941) (emphasis added) (quotation omitted). This same principle is embodied in the tentative drafts to the Model Penal Code. In discussing the inconsistencies between the intent required for conspiracy and the underlying substantive offense, the tentative drafts for the Model Penal Code state: "Under Section 5.03(1)(a)[, ] it is enough that the object of the agreement is 'conduct which constitutes the crime, ' thus importing the mental state required by the substantive offense, except as to the result elements, where purpose clearly is required. " American Law Institute, Model Penal Code § 5.03, at 113 (Tent. draft No. 10, 1960) (emphasis added).

[¶ 18] Extreme indifference murder is a general intent crime, not a specific intent crime. See State v. Erickstad, 2000 ND 202, ¶ 25, 620 N.W.2d 136. Under N.D.C.C. § 12.1-16-01(1)(b), a person does not intend to cause the death of another human-being, but rather death is a consequence of the defendant's willful conduct. See Erickstad, at ¶ 25. In other words, extreme indifference murder results in an unintentional death from behavior manifesting an extreme indifference to the value of human life. Conspiracy, however, requires the intent to cause a particular result that is criminal. To be guilty of conspiracy to commit murder, an individual must intend to achieve the results causing the death of another human being. Therefore, charging a defendant with conspiracy to commit unintentional murder creates an inconsistency in the elements of conspiracy and extreme indifference murder that is logically and legally impossible to rectify. An individual cannot intend to achieve a particular offense that by its definition is unintended.

[¶ 19] For this reason, a majority of jurisdictions have held that conspiracy to commit an unintentional murder, analogous to the alleged crime in this case, is not a cognizable offense. See Evanchyk v. Stewart, 340 F.3d 933, 939-40 (9th Cir. 2003) (holding conspiracy to commit murder requires an intent to kill and, therefore, felony murder may not be the predicate offense for a conspiracy conviction); United States v. Croft, 124 F.3d 1109, 1121-22 (9th Cir. 1997) (noting an "intent to kill" is an essential element of conspiracy to commit second-degree murder); United States v. Chagra, 807 F.2d 398, 401 (5th Cir. 1986) (noting an "intent to kill" is an essential element of conspiracy to commit second-degree murder); Swain, 909 P.2d at 999-1000 (holding conspiracy to commit murder under the theory of implied malice is legally impossible, as implied malice cannot "coexist with a specific intent to kill"); Palmer, 964 P.2d at 529-30 (holding conspiracy to commit reckless manslaughter is not a cognizable offense because "one cannot agree in advance to accomplish an unintended result"); Greene, 847 A.2d at 770-71 (holding reckless manslaughter in the first degree with a firearm is "defined in terms of recklessly causing a result" and "conspiracy to commit manslaughter in the first degree with a firearm is not a cognizable crime because it requires a logical impossibility, namely, that the actor agree and intend that an unintended death result" (quotation omitted)); State v. Wilson, 43 P.3d 851, 853-54 (Kan.Ct.App. 2002) (holding conspiracy to commit felony murder is not a recognized crime because "[o]ne cannot intentionally conspire to commit a crime which only requires a mens rea of negligence or no mens rea at all"); Gilbert, 455 N.W.2d at 749 (holding second-degree murder may not require a specific intent to kill and, therefore, the offense of conspiracy to commit second-degree murder is nonexistent); Baca, 950 P.2d at 787-88 (holding a charge of conspiracy to commit depraved-mind murder is invalid because conspiracy requires an intent to commit an offense, which is inconsistent with the culpability required for depraved-mind murder); State v. Brewton, 618 S.E.2d 850, 857 ( N.C. Ct. App. 2005) (recognizing the holding, in State v. Gibbs, 436 S.E.2d 321 ( N.C. 1993), that conspiracy to commit murder requires a finding of an agreement to commit intentional murder); but see Commonwealth v. La, 640 A.2d 1336, 1345 (Pa. Super. Ct. 1994) (holding "despite the fact that an individual co-conspirator did not contemplate a killing, where such killing is a natural and probable consequence of a co-conspirator's conduct, murder is not beyond the scope of the conspiracy"), contradicted by Commonwealth v. Clinger, 833 A.2d 792 (Pa. Super. Ct. 2003) (holding a guilty plea to conspiracy to commit third-degree murder is invalid when the defendant did not have the intent to cause death).

[¶ 20] We are persuaded by the reasoning of those courts that conclude conspiracy to commit unintentional murder creates a logical inconsistency because "one cannot agree in advance to accomplish an unintended result." Palmer, 964 P.2d at 529. We conclude conspiracy is a specific intent crime requiring intent to agree and intent to achieve a particular result that is criminal. Specifically, to find a person guilty of conspiracy to commit murder, the State must prove (1) an intent to agree, (2) an intent to cause death, and (3) an overt act. See State v. Keller, 2005 ND 86, ¶ 51, 695 N.W.2d 703. Therefore, conspiracy to commit extreme indifference murder, under N.D.C.C. §§ 12.1-06-04 and 12.1-16-01(1)(b), is not a cognizable offense.

III

[¶ 21] Borner did not object to the criminal information or the amended criminal information. He did, however, argue at a pretrial conference the jury instructions should define conspiracy to commit murder as having, in part, an agreement to commit murder and, in his motion for acquittal, under N.D.R.Crim.P. 29, the State must prove an agreement to commit murder and that it had failed in its proof. On appeal, Borner argues the State's failure to charge an offense is obvious error.

[¶ 22] Generally, a defendant may move to arrest the judgment within fourteen days after the verdict or finding of guilt if the charging document fails to charge an offense. N.D.R.Crim.P. 34(a)(1) and (b). If a defendant fails to timely move under N.D.R.Crim.P. 34, the alleged error must be analyzed under N.D.R.Crim.P. 52(b), obvious error. See State v. Bertram, 2006 ND 10, ¶¶ 30-31, 708 N.W.2d 913.

[¶ 23] This Court exercises its "power to notice obvious error cautiously and only in exceptional circumstances where the accused has suffered serious injustice." State v. Olander, 1998 ND 50, ¶ 12, 575 N.W.2d 658. For this Court to notice a claimed error that was not raised before the trial court, the defendant must show "(1) error, (2) that is plain, and (3) affects substantial rights." Id. at ¶ 14. An obvious error is a deviation from an applicable legal rule. Id. The alleged deviation must also "affect 'substantial rights, ' that is, it must have been prejudicial, or affected the outcome of the proceeding." Id. at ¶ 15. An obvious error "seriously affect[ing] the fairness, integrity or public reputation of judicial proceedings" may, at our discretion, be corrected. Id. at ¶ 16.

[¶ 24] A charge of conspiracy to commit murder requires proof the defendant intended to agree and intended to achieve a particular result that is criminal. In State v. Keller, 2005 ND 86, ¶ 51, 695 N.W.2d 703, our Court held: "[t]o establish conspiracy to commit murder, the State must prove an agreement to commit murder... N.D.C.C. § 12.1-06-04(1)." Here, Borner argued, in a pretrial conference and in his N.D.R.Crim.P. 29 motion for judgment of acquittal, the State was required to prove an agreement to commit murder. The State did not allege an agreement to commit murder in the amended information. Further, the State argued it was not required to prove an intent to cause death and conceded in its appellate brief "no such evidence exist[ed]." A charging document is defective if it fails to contain a "'written statement of the essential elements of the offense.'" See State v. Bertram, 2006 ND 10, ¶ 23, 708 N.W.2d 913 (quoting State v. Frankfurth, 2005 ND 167, ¶ 7, 704 N.W.2d 564). The trial court obviously erred when it failed to apply this essential element of the offense of conspiracy to commit murder. Had it done so, it would have recognized the information was defective. See Olander, 1998 ND 50, ¶ 16, 575 N.W.2d 658.

[¶ 25] We cannot imagine a greater error affecting a defendant's substantial rights than when a defendant is convicted of conduct that is not a criminal offense under our law. The State has conceded it did not intend to prove, and no evidence existed to establish, an intent to cause death. Without this intent, the State did not charge the crime of conspiracy to commit murder. We conclude Borner was prejudiced by this error. The failure to exercise our discretion in this case would seriously affect the fairness, integrity, and public reputation of criminal jury trials. We, therefore, exercise our discretion to notice this obvious error, and we reverse the criminal judgment.

IV

[¶ 26] We note the effect of this opinion places Borner in the same position as if no crime had been charged, because no crime was in fact charged. See Frankfurth, 2005 ND 167, ¶ 28, 704 N.W.2d 564 (holding "[t]he effect of an order arresting judgment is to place the defendant in the same situation in which he was before the information was filed" (quotation omitted)). Borner may be prosecuted under a new charging document as if no prior proceedings existed. See United States v. Ball, 163 U.S. 662, 672 (1896) (holding a defendant who successfully obtains an indictment be set aside on appeal may be tried anew); Montana v. Hall, 481 U.S. 400, 404 (1987) (relying on Ball and holding a retrial is permitted after a conviction is reversed as a result of a defective charging document).

V

[¶ 27] Because our resolution is dispositive of the appeal, we need not reach the other issues raised by the parties. We reverse Borner's criminal judgment for conspiracy to commit murder.

[¶ 28] Mary Muehlen Maring, Daniel J. Crothers, Carol Ronning Kapsner

VandeWalle, Chief Justice, concurring specially.

[¶ 29] A rule of law should not be interpreted so as to benefit or reward the wrongdoer or to shield the perpetrator. Fischer v. Knapp, 332 N.W.2d 76 (N.D. 1983). I believe some of the authorities relied upon by the majority engage in a hyper technical analysis of the conspiracy statute as applied to murder under the extreme indifference to the value of human life provision of our statutes. Nevertheless, I agree with the majority that the conspiracy statute and the murder statute, when read together, are ambiguous. Our Court construes ambiguous criminal statutes against the government and in favor of the accused. State v. Brossart, 1997 ND 119, 565 N.W.2d 752. I concur in the result reached by the majority opinion.

[¶ 30] Gerald W.VandeWalle, C.J.

Sandstrom, Justice, dissenting.

[¶ 31] Consistent with United States Supreme Court decisions interpreting the federal conspiracy law from which North Dakota law derives, I would affirm the conspiracy to commit murder convictions of Cody Borner and Richard Whitman. Even if the new law announced by the majority were correct, we should affirm because the defendants, who never raised the issue in the trial court, cannot establish the necessary plain error. That is, they would have to establish that the district court failed to follow clearly established North Dakota case law, and they cannot do so.

[ΒΆ 32] The United States Supreme Court has said the intent required for conspiracy conviction is the degree of criminal intent necessary for the underlying offense itself. Thus, when the underlying offense requires that the defendant "willfully engage in or cause circumstances manifesting extreme indifference to the value of human life" to commit murder under ...


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