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.
O. Diamond, Fargo, ND, for defendant and appellant.
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.
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.
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).
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.
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.
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.
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.
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)."