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State v. Clark

Supreme Court of North Dakota

August 13, 2015

State of North Dakota, Plaintiff and Appellee
v.
Joshua James Clark, Defendant and Appellant

As Amended August 14, 2015.

Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Bruce B. Haskell, Judge.

Pamela A. Nesvig, Assistant State's Attorney, Bismarck, N.D., for plaintiff and appellee.

Charles A. Stock, Crookston, MN, for defendant and appellant.

Lisa Fair McEvers, Dale V. Sandstrom, Daniel J. Crothers, Benny A. Graff, S.J., Gerald W. VandeWalle, C.J. Opinion of the Court by McEvers, Justice. The Honorable Benny A. Graff, S.J., sitting in place of Kapsner, J., disqualified.

OPINION

Page 364

Lisa Fair McEvers, Justice.

[¶1] Joshua Clark appeals from a criminal judgment entered after a jury found him guilty of conspiracy to commit murder. Clark argues there was insufficient evidence to establish he conspired or agreed with another to commit murder. Viewed in the light most favorable to the jury verdict, we conclude there is sufficient evidence to support the verdict, and we affirm the judgment.

I

[¶2] Clark and Theo Crowe were acquaintances and co-workers at a construction business in Bismarck. On May 11, 2013, they were drinking together at Clark's apartment in Bismarck. In an interview with law enforcement officers, Clark stated he and Crowe were upset about the women in their lives and statements were made to the effect " they were so mad they could kill somebody." Clark testified at trial he did not specifically recall making that statement, but he " might have said it," and if he did, he was not serious and " it would've just been two individuals blowing off steam."

[¶3] After a confrontation between Crowe and Clark's roommate at Clark's apartment, Clark and Crowe got a ride to Crowe's apartment in Bismarck. According to Crowe's neighbor, Paul Groce, he encountered Crowe and Clark outside Crowe's apartment, and when he saw Crowe carrying a hammer in a striking position like he was going to use it on him, Groce walked away from the situation and went inside his apartment and locked his door. Groce testified he later saw Crowe and Clark leave Crowe's apartment and " they seemed like they were intoxicated and they wanted to fight or something like that."

[¶4] Clark testified they left Crowe's apartment to get some marijuana, and they saw John Swain, an individual he had never met, at a nearby park. Clark testified Crowe invited Swain back to Crowe's apartment, where the three men listened to music and drank for about ten to fifteen minutes before Crowe got up and hit Swain in the head with a hammer. Clark testified he was " shocked" by the incident and Crowe hit Swain four or five more times and then told Clark " it's your turn now." Clark testified he believed Swain was already dead and he hit Swain once in the head because he was scared of repercussions if he did not follow Crowe's directions. Clark testified that after he hit Swain, he gave the hammer back to Crowe, who continued to hit Swain at least five more times. Clark testified he helped Crowe move Swain's body to a bathtub, he started to wipe up some blood, he helped amputate Swain's legs, and he helped move the body into a garage.

Page 365

[¶5] According to Clark, he stayed overnight at Crowe's apartment, and a friend picked him up the next morning. Clark testified he later disposed of the murder weapon, his work hammer, but he did not help Crowe burn Swain's clothing or cell phone, he did not try to amputate Swain's head, he did not help load Swain's body into a pickup truck several days later, and he did not go with Crowe to bury Swain's ...


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