State v. Borner

836 N.W.2d 383 (2013)

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Nature of the Case

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Facts

D and Richard Whitman were charged with two counts of conspiracy to commit murder. P charged Ds 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 D agreed with another to 'willfully engage in or cause circumstances manifesting extreme indifference to the value of human life.' The jury instructions provided the State must prove beyond a reasonable doubt that Ds 'agreed with each other to knowingly engage in or cause conduct constituting the offense of murder under circumstances manifesting extreme indifference to the value of Michael Padilla's life.' 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 D agreed to commit murder. P concurred in the motion. The trial court denied the motion, and the jury, subsequently, found D guilty of both counts of conspiracy to commit murder. P appealed. 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.