State v. Borner

Decision Date25 September 2013
Docket NumberNo. 20120388.,20120388.
PartiesSTATE of North Dakota, Plaintiff and Appellee v. Cody BORNER, Defendant and Appellant.
CourtNorth Dakota Supreme Court

OPINION TEXT STARTS HERE

Jessica J. Binder, State's Attorney, Stanton, N.D., for plaintiff and appellee.

Michael R. Hoffman, Bismarck, N.D., for defendant and appellant.

MARING, Justice.

[¶ 1] Cody Borner appeals the trial court's judgment of conviction after a jury found him guilty of two counts of conspiracy to commit murder. He argues the criminal information failed to charge him with the purported offense of conspiracy to commit murder. We hold that the charge of conspiracy to commit murder under N.D.C.C. §§ 12.1–06–04 and 12.1–16–01(1)(b) is not a cognizable offense. We reverse the criminal judgment.

I

[¶ 2] Borner and Richard Whitman were charged with two counts of conspiracy to commit murder. The State charged Borner and Whitman with conspiracy to commit murder under N.D.C.C. §§ 12.1–06–04, criminal conspiracy, and 12.1–16–01(1)(b), extreme indifference murder, alleging in the information Borner agreed with another to “willfully engage in or cause circumstances manifesting extreme indifference to the value of human life.”

[¶ 3] At a pretrial hearing, the State requested the criminal information be amended to specify the culpability required to conspire to commit extreme indifference murder includes “knowingly” rather than “willfully.” The amended criminal information stated:

On or about the 31st day of January, 2012, in the City of Beulah, in Mercer County, North Dakota, the above named Defendants committed the offenses of CONSPIRACY TO COMMIT MURDER (2 COUNTS), in violation of Section 12.1–06–04 and 12.1–16–01[ (1) ](b) of the North Dakota Century Code....

COUNT 1—CONSPIRACY TO COMMIT MURDER:

That the Defendants did then and there agree with one another to knowingly engage in or cause circumstances manifesting extreme indifference to the value of human life, and one person did an overt act, including, but not limited to, appearing at the Padilla apartment with a loaded assault rifle and loaded pistol; brandishing firearms at Michael Padilla; weapons were fired at Michael Padilla inside the residence multiple times, killing Michael Padilla; the Defendants fled the scene after the shooting and showed no deference to their victims.

Class “AA” Felony Penalty Section: 12.1–16–01(1)[,] N.D.C.C. COUNT 2—CONSPIRACY TO COMMIT MURDER:

That the Defendants did then and there agree with one another to knowingly engage in or cause circumstances manifesting extreme indifference to the value of human life, and one person did an overt act, including, but not limited to, appearing at the Padilla apartment with a loaded assault rifle and loaded pistol; brandishing firearms at Timothy Padilla; weapons were fired at Timothy Padilla inside the residence multiple times, injuring Timothy Padilla; the Defendants fled the scene after the shooting and showed no deference to their victims.

CLASS “AA” Felony Penalty Section: 12.1–16–01(1)[,] N.D.C.C.

[¶ 4] Borner did not object to the amended criminal information. In the proposed jury instructions, the trial court included in the definition of conspiracy to commit murder that “conspiracy to commit murder requires an agreement to either cause murder or cause death.” The State argued the agreement was to create circumstances manifesting an extreme indifference to the value of human life not an agreement to commit murder and an agreement to commit murder was not an essential element of the charge. Agreeing with the trial court, Borner argued an agreement to create circumstances manifesting an extreme indifference constituted conspiracy to commit reckless endangerment. Further, Borner argued under N.D.C.C. § 12.1–16–01, “there has to be the agreement to commit the murder and circumstances manifesting extreme indifference is the vehicle by which that was intended.” The State also requested the definition of murder be excluded from the jury instructions.

[¶ 5] The final jury instructions defined conspiracy to commit murder as follows:

A person is guilty of conspiracy to commit murder if the person agreed with another to knowingly engage in or cause conduct which, in fact, constitutes the offense of murder of another under circumstances manifesting extreme indifference to the value of human life, and one party to that agreement did an overt act to effect an objective of the conspiracy.

As to count 1, the jury instructions provided the State must prove beyond a reasonable doubt that Borner and Whitman [a]greed with each other to knowingly engage in or cause conduct constituting the offense of [m]urder under circumstances manifesting extreme indifference to the value of Michael Padilla's life.” A similar instruction was given in regard to count 2 concerning Timothy Padilla. Borner did not object to the final jury instructions.

[¶ 6] At trial, after the State's case-in-chief, Whitman moved for a judgment of acquittal arguing the State failed to prove beyond a reasonable doubt the defendants agreed to commit murder. Borner concurred in the motion. The trial court denied the motion, and the jury, subsequently, found Borner guilty of both counts of conspiracy to commit murder.

II

[¶ 7] Borner argues (1) the amended criminal information was defective because it failed to charge him with an offense, (2) the jury instructions failed to correct the defect in the amended information and inadequately advised the jury of an offense for which he could be found guilty, and (3) the evidence was insufficient to support a finding of guilt because there was no evidence that Borner knowingly agreed to willfully cause the death of any person. 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 and cannot be based on the theory of murder under N.D.C.C. § 12.1–16–01(1)(b), extreme indifference murder.

[¶ 8] Borner was charged with conspiracy to commit murder in violation of N.D.C.C. §§ 12.1–06–04 and 12.1–16–01(1)(b). Borner argues the State must allege he had the intent to cause death under the statutes charged. The State disagrees, arguing a defendant may be found guilty of conspiracy to commit murder if he agrees with another to engage in conduct constituting murder under circumstances manifesting an extreme indifference to the value of human life. The State argues it does not need to prove an intent to cause death. Whether conspiracy to commit extreme indifference murder is a cognizable crime is a question of statutory interpretation.

[¶ 9] Section 12.1–06–04(1), N.D.C.C., states: “A person commits conspiracy if he agrees with one or more persons to engage in or cause conduct which, in fact, constitutes an offense or offenses, and any one or more of such persons does an overt act to effect an objective of the conspiracy.” “Construction of a criminal statute is a question of law, fully reviewable by this Court.” State v. Laib, 2002 ND 95, ¶ 13, 644 N.W.2d 878. The primary goal of interpreting a statute is to ascertain the legislature's intent. Id. We must first look to the statute's language and “give meaning and effect to every word, phrase, and sentence.” Id.; seeN.D.C.C. § 1–02–03. If a statute is susceptible to differing but rational meanings, it is ambiguous and extrinsic aids may be considered to ascertain the legislature's intent. Laib, at ¶ 13;seeN.D.C.C. § 1–02–39. We also construe criminal statutes to avoid ludicrous and absurd results.” Laib, at ¶ 13;seeN.D.C.C. § 1–02–38(3). Because the conspiracy statute, N.D.C.C. § 12.1–06–04(1), could be interpreted in two rational ways, we conclude it is ambiguous.

[¶ 10] In 1971, the North Dakota Legislative Assembly sought to revise the substantive criminal law in North Dakota. H.C.R. 3050, 1971 N.D. Sess. Laws 1392. The Committee of Judiciary B, assigned to carry out the revision, used the proposed Federal Criminal Code as a model for the revised code. Minutes of the Interim Comm. on JudiciaryB ” 28 (Jan. 24–25, 1972); see also A Hornbook to the North Dakota Criminal Code, 50 N.D. L.Rev. 639, 639 n. 7 (1974) [hereinafter Hornbook] (discussing the rationale for accepting the proposed Federal Criminal Code as a model for North Dakota's revised criminal code). Therefore, if the North Dakota code does not vary in substance from its federal counterpart, when confronted with a question of statutory interpretation, we are guided by both the drafter's official comments to the proposed Federal Criminal Code and the relevant legislative history.” State v. Knowels, 2002 ND 62, ¶ 9, 643 N.W.2d 20;see State v. Bower, 442 N.W.2d 438, 440 (N.D.1989); State v. Haugen, 392 N.W.2d 799, 804 (N.D.1986).

[¶ 11] Section 12.1–06–04, N.D.C.C., is drawn from Section 1004(1) of the proposed Federal Criminal Code. State v. Rambousek, 479 N.W.2d 832, 834–35 (N.D.1992); Hornbook, 50 N.D. L.Rev. at 685 n. 360. In turn, the proposed Federal Criminal Code Working Papers rely on the tentative drafts to the Model Penal Code for interpretation of the intent and culpability required to commit the crime of conspiracy. See I Working Papers of the Nat'l Comm'n on Reform of Federal Criminal Laws 387–91 (1970) [hereinafter Working Papers]. To aid in the interpretation of ambiguous statutes, we may rely on “circumstances under which the statute was enacted,” “legislative history,” and “common law or former statutory provisions, including laws upon the same or similar subjects.” N.D.C.C. § 1–02–39.

[¶ 12] Conspiracy is an inchoate crime that is completed upon an agreement and an “overt act...

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