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State v. Swanson

Supreme Court of North Dakota

July 11, 2019

State of North Dakota, Plaintiff and Appellee
v.
Chase Duane Swanson, Defendant and Appellant

          Appeal from the District Court of Bowman County, Southwest Judicial District, the Honorable James D. Gion, Judge.

          Britta K. Demello Rice (argued), Assistant Attorney General, Bismarck, ND, and Andrew J. Q. Weiss (on brief), State's Attorney, Bowman, ND, for plaintiff and appellee.

          Thomas F. Murtha IV, Dickinson, ND, for defendant and appellant.

          OPINION

          JENSEN, JUSTICE.

         [¶1] Chase Swanson appeals from a district court's judgment finding him guilty of conspiracy to commit murder. The jury instructions allowed Swanson to be convicted of a conspiracy to "knowingly" cause the death of another human being. He argues conspiracy to "knowingly" cause the death of another human being is a non-cognizable offense because it does not require the actor to have had an intent to cause the death. We reverse the judgment of conviction on the charge of conspiracy to commit murder and remand this case to the district court for a new trial.

         I

         [¶2] On August 19, 2016, Swanson was present within a motel room in Bowman, North Dakota when the victim was killed. Swanson was charged with several crimes, including conspiracy to commit murder by either knowingly or intentionally causing the death of another human being under N.D.C.C. §§ 12.1-06-04 (defining conspiracy) and 12.1-16-01(1)(a) (defining murder).

         [¶3] Swanson objected to the inclusion of "knowingly" as a possible mental state for causing the death of another human being within the conspiracy to commit murder charge. Swanson's proposed jury instructions excluded "knowingly" as a mental state and would have required the jury to find that he entered into an agreement to intentionally cause the death of another human being. He argued the charge of conspiracy to "knowingly" cause the death of another human being is a non-cognizable offense because it does not require an intent to cause a death. Swanson also objected to the State's proposed jury instruction, which allowed Swanson to be convicted of conspiracy to commit murder by entering into an agreement to either "intentionally or knowingly" cause the death of another human being.

         [¶4] The district court rejected Swanson's argument that conspiracy to "knowingly" cause the death of another human being was a non-cognizable offense. The court's jury instruction defined the underlying crime of murder, within the alleged conspiracy to commit murder, as having the mental state of either intentionally or knowingly. The jury instruction defined "knowingly" as "when [an individual] engage[s] in the conduct, they know or have a firm belief, unaccompanied by substantial doubt, that they are doing so, whether or not it is their purpose to do so." (Emphasis added). The district court's jury instruction regarding the definition of "knowingly" incorporated the statutory definition of "knowingly" codified in N.D.C.C. § 12.1-02-02.

         [¶5] Swanson contends the inclusion of "knowingly" allowed the jury to convict him of conspiracy to commit murder without having an intent to cause the death of another human being. Swanson argues our prior caselaw defining the elements of conspiracy to commit murder requires the State to prove he entered into a conspiracy intending to cause a death. His argument can be resolved by determining whether our prior caselaw defining the elements of conspiracy to commit murder requires proof of an intent to cause the death of another human being and, if so, whether the definition of "knowingly" would allow a conviction without a determination that Swanson had the intent to cause the death of another human being.

         II

         [¶6] This Court has previously determined the offense of conspiracy to commit murder is a non-cognizable offense when charged under N.D.C.C. §§ 12.1-06-04 and 12.1-16-01(1)(b). State v. Borner, 2013 ND 141, ¶ 20, 836 N.W.2d 383. In Borner, an individual was convicted of conspiracy to commit a murder under N.D.C.C. § 12.1-16-01(1)(b), which requires a mental state of "engag[ing] in conduct constituting murder under circumstances manifesting an extreme indifference to the value of human life." Id. at ¶ 8. Swanson argues our decision in Borner limits a conviction for conspiracy to commit murder to instances in which the State proves there was an intent to cause a death. The State argues our decision in Borner only precludes conspiracy to commit murder when the underlying murder charge is premised on N.D.C.C. § 12.1-16-01(1)(b).

         [¶7] In Borner, the majority framed the issue on appeal as follows:

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 ...

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