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State v. Pemberton

Supreme Court of North Dakota

June 27, 2019

State of North Dakota, Plaintiff and Appellee
v.
Lorenzo Traveras Pemberton, Defendant and Appellant

          Appeal from the District Court of Stark County, Southwest Judicial District, the Honorable William A. Herauf, Judge.

          Brittney A. Bornemann, Assistant State's Attorney, Dickinson, ND, for plaintiff and appellee.

          Scott O. Diamond, Fargo, ND, for defendant and appellant.

          OPINION

          Jensen, Justice.

         [¶1] Lorenzo Traveras Pemberton appeals from a district court's criminal judgment entered after a jury found him guilty of aggravated assault, interference with an emergency call, felonious restraint, attempted murder, and child neglect. Pemberton argues the district court erred in granting the State's motion to amend the criminal information one week before trial, the jury was provided improper instructions, the jury was provided with an improper verdict form, and the district court failed to properly admonish the jury before each break in the trial proceedings. We affirm.

         I.

         [¶2] Pemberton was part of an incident involving his girlfriend, which occurred during the night of February 22 and extended into February 23, 2018. During the incident, Pemberton and the victim's argument escalated and the victim eventually placed a 911 emergency call. Following the call, the argument became physical and Pemberton is alleged to have struck the victim and pushed her to the ground. While they were struggling on the ground, the victim saw a screwdriver on the floor, picked it up, and is alleged to have struck Pemberton with the screwdriver. Pemberton obtained control of the screwdriver from the victim and struck her with it. Eventually law enforcement arrived at the scene, and Pemberton was taken into custody and placed under arrest.

         [¶3] Pemberton was initially charged with aggravated assault, interference with an emergency call, and felonious restraint. On March 15, 2018, the State added charges of attempted murder and child neglect in a separate criminal file. The criminal information containing the allegation of attempted murder alleged Pemberton "intentionally engaged in conduct which, in fact, constituted a step towards the commission of the crime of murder, when the Defendant attempted to cause the death of another human being under circumstances manifesting extreme indifference to the value of human life." The language used for the attempted murder charge mirrored the language used to define murder under N.D.C.C. § 12.1-16-01(1)(b).

         [¶4] In Dominguez v. State, this Court held attempted murder under N.D.C.C. §§ 12.1-06-01 and 12.1-16-01(1)(b), is not a cognizable offense. 2013 ND 249, ¶ 22, 840 N.W.2d 596. See also Coppage v. State, 2014 ND 42, ¶¶ 27-28, 843 N.W.2d 291. In Dominguez, the defendant argued an individual cannot have the specific intent to commit the general intent crime of murder under circumstances manifesting an extreme indifference of human life. Dominguez, at ¶ 9. Because the attempt statute requires the specific intent to complete the underlying crime, but extreme indifference murder results in an unintentional death, this Court held there is an inconsistency in the elements of the two crimes that is "logically and legally impossible to rectify." Id. at ¶ 13. Attempted murder under N.D.C.C. § 12.1-06-01, using the definition of murder under N.D.C.C. § 12.1-16-01(1)(b), is not a cognizable offense. Id. at ¶ 22.

         [¶5] On May 7, 2018, the district court conducted a preliminary hearing on the felony charges. At the conclusion of the hearing, the court found there was probable cause to support all of the charges, including the attempted murder charge.

         [¶6] On August 22, 2018, one week prior to the trial, the State filed a motion to amend the criminal information. The State sought to amend the charge of attempted murder by striking the language alleging "the Defendant attempted to cause the death of another human being under circumstances manifesting extreme indifference to the value of human life," and replacing it with the allegation that, "the Defendant attempted to intentionally or knowingly cause the death of another human being." The district court allowed the State's requested amendment. One day before the trial began, the State filed a single amended criminal information alleging the five charges, including the amended attempted murder charge.

         [¶7] Pemberton was found guilty of the five charges after a jury trial. On appeal, Pemberton argues the district court committed reversible error by: (1) finding probable cause existed for the attempted murder charge at the preliminary hearing, (2) allowing the State to add additional criminal charges the day before the jury trial, (3) giving confusing and unreliable jury instructions, (4) providing the jury with an improper verdict form, and (5) failing to properly admonish the jury, as required by N.D.C.C. § 29-21-28.

         II.

         [¶8] Pemberton concedes none of the issues he has raised on appeal were the subject of an objection in the district court, and the appropriate standard of review for the issues on appeal is a review for obvious error. This Court has previously noted that "issues not raised at trial will not be addressed on appeal unless the alleged error rises to the level of obvious error under N.D.R.Crim.P. 52(b)." Sta ...


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