from the District Court of Cass County, East Central Judicial
District, the Honorable Thomas R. Olson, Judge.
J. Viste, Assistant State's Attorney, Fargo, N.D., for
plaintiff and appellee.
C. Kraus-Parr, Grand Forks, N.D., for defendant and
William Hoehn appealed from a criminal judgment of conviction
for conspiracy to commit kidnapping and giving false
information to law enforcement. The district court found
Hoehn had previously been convicted of a similar offense and
sentenced him as a dangerous special offender to life in
prison. On appeal, Hoehn argues the district court erred in
its dangerous special offender finding, in applying a life
expectancy table not authorized by statute, in failing to
advise him of the maximum sentence prior to accepting his
guilty plea, and in listing kidnapping rather than conspiracy
to commit kidnapping on the amended judgment. We affirm the
conviction, vacate the sentence, and remand for resentencing
without application of the dangerous special offender
Hoehn was in a relationship with Brooke Crews. Crews killed
Savanna LaFontaine-Greywind by cutting open her abdomen and
removing her pre-term baby. Hoehn arrived at the home he
shared with Crews after Crews had killed Greywind and taken
the baby. He then helped to clean up evidence of the crime,
including hiding Greywind's body in a closet, wrapped in
garbage bags. Hoehn also helped Crews hide the baby from
Greywind's family and law enforcement. Hoehn carried the
baby around in a book bag when in public.
Hoehn was charged with three offenses: conspiracy to commit
murder, conspiracy to commit kidnapping, and false
information to law enforcement. Approximately three months
after Hoehn's initial appearance on these charges, the
State filed a notice of intent to sentence Hoehn as a
dangerous special offender. Hoehn pled guilty to conspiracy
to commit kidnapping and false information to law enforcement
and proceeded to trial on conspiracy to commit murder. The
jury acquitted Hoehn of conspiracy to commit murder. Hoehn
now appeals both his sentence and conviction on the
An offender who qualifies as a "dangerous special
offender" may be given an extended sentence. N.D.C.C.
§ 12.1-32-09(1). "This court reviews [dangerous
special] offender proceedings and the district court's
application of a sentencing enhancement under N.D.C.C. §
12.1-32-09 for an abuse of discretion." State v.
Lyon, 2019 ND 21, ¶ 5, 921 N.W.2d 441; State v.
Clark, 2012 ND 135, ¶ 18, 818 N.W.2d 739. "A
trial court abuses its discretion only when it acts in an
arbitrary, unreasonable, or capricious manner, or
misinterprets or misapplies the law." State v.
Cain, 2011 ND 213, ¶ 16, 806 N.W.2d 597.
To find Hoehn to be a dangerous special offender and extend
his sentence, N.D.C.C. § 12.1-32-09(1)(d) requires a
finding that (1) he "was convicted of an offense that
seriously endangered the life of another person" and (2)
he "had previously been convicted of a similar
offense." The jury, or the court if a jury is waived,
must conduct a hearing to determine beyond a reasonable doubt
whether an offender is a dangerous special offender. N.D.C.C.
§ 12.1-32-09(4). Hoehn waived his right to a jury trial
on the dangerous special offender elements. Applying N.D.C.C.
§ 12.1-32-09(1)(d), the district court found beyond a
reasonable doubt that Hoehn is a dangerous special offender
because, by his guilty plea to conspiracy to commit
kidnapping, he had been "convicted of an offense that
seriously endangered the life of another person" and he
had "been convicted of a similar offense," a 2012
conviction for child abuse.
To prove Hoehn "had previously been convicted of a
similar offense" under N.D.C.C. § 12.1-32-09(1)(d),
the State offered a 2012 conviction for abuse or neglect of a
child. Hoehn pled guilty to the charge, which was a class B
felony under N.D.C.C. § 14-09-22(1)(a) (2009). Although
the term "similar offense" has been in the
statutory language of N.D.C.C. § 12.1-32-09(1)(d) since
it was originally enacted in 1973, see N.D.C.C.
§ 12.1-32-09(1)(d) (1973) and State v. Wells,
276 N.W.2d 679 (N.D. 1979), neither the Century Code nor our
cases have defined or explained the term. Here, the district
court did not explain why it found Hoehn's kidnapping
offense to be similar to his 2012 conviction for child abuse.
When used as an adjective, "similar" is defined as
"1: having characteristics in common: [being] very much
alike . . . [or] 2: alike in substance or essentials."
Webster's Third New International Dictionary
2120 (16th ed. 1971). When defined as a noun subject,
"similar" is defined as "one that resembles
another." Id. As an adjective,
"equivalent" is defined as "like in
signification or import . . . corresponding or virtually
identical esp[ecially] in effect or function."
Webster's Third New International Dictionary 769
(16th ed. 1971). As a noun subject, "equivalent" is
defined as "one that is equivalent (as in value,
meaning, or effect)." Id. These definitions
indicate that two things that are "equivalent" have
more characteristics in common than two things that are
"similar." The difference is one of degree. The
resemblance need not be as strong for two offenses to be
similar as for two offenses to be equivalent. We have
examined what constitutes an offense "equivalent"
to a North Dakota offense of driving under the influence,
Walter v. North Dakota State Highway Comm'r, 391
N.W.2d 155 (N.D. 1986), and to North Dakota offenses
requiring registration as a sex offender, Denault v.
State, 2017 ND 167, 898 N.W.2d 452. We consider cases
discussing "equivalent" offenses by analogy to help
inform our analysis here of what are "similar
To be equivalent offenses, the statutes do not need to be
identical. Id. at ¶ 19 (quoting
Walter, 391 N.W.2d at 160). As we do when
considering whether offenses are equivalent, to determine
whether two offenses are similar, we examine both the
elements of the two statutes and, if necessary, also the
facts underlying each conviction. Because similar assaultive
conduct may for a variety of reasons result in charges for
disorderly conduct, simple assault, ...