CHAPTER 12.1-01 Application — Purposes — Proof — Definitions

12.1-01-01. Title — Retroactivity — Application — Contempt power.

  1. Title 12.1 of the Century Code may be cited as the North Dakota Criminal Code.
  2. This title, except as provided in subsection 3, shall not apply to offenses committed prior to its effective date. Prosecutions for such offenses shall be governed by prior law, which is continued in effect for that purpose. For the purposes of this section, an offense was committed prior to the effective date of this title if any of the elements of the offense occurred prior thereto.
  3. In cases pending on or after the effective date of this title, and involving offenses committed prior thereto:
    1. The provisions of this title according a defense or mitigation shall apply, with the consent of the defendant.
    2. The court, with the consent of the defendant, may impose sentence under the provisions of this title which are applicable to the offense and the offender.
  4. This section does not affect the power of a court or legislative assembly to punish for contempt, or to employ any enforcement sanction authorized by law, nor does this section affect any power conferred by law upon military authority to impose punishment upon offenders.

Source: S.L. 1973, ch. 116, § 1.

Cross-References.

Discipline of national guard, see N.D.C.C. § 37-01-29.

Limitation of time for commencing prosecution for felony other than murder, see N.D.C.C. § 29-04-02.

Limitation of time for commencing prosecution for misdemeanor or infraction, see N.D.C.C. § 29-04-03.

Uniform Code of Military Justice as applicable in state, punishment for offenses, see N.D.C.C. § 37-01-03.

Notes to Decisions

Dangerous Special Offender Statute.

As the defendant’s prosecution came within the exception of subdivision (3)(b) and he had asked to be sentenced under the new criminal code, he had waived his argument that the dangerous special offender statute as applied to him operated as an unconstitutional ex post facto law. State v. Jensen, 429 N.W.2d 445, 1988 N.D. LEXIS 257 (N.D. 1988).

Former Penal Statutes.
—Consent to Code Defense and Mitigation Provisions.

The provisions of subsection 3 of this section giving a defendant in a case arising before, but tried after, the effective date of this title the election of proceeding under it with respect to defenses and circumstances in mitigation did not require the trial judge to notify defendant of his right to make the election, and in a case where defense counsel was clearly aware of, and willing to assert, this right, trial judge’s failure to formally advise defendant of its existence was not reversible error. State v. Jensen, 251 N.W.2d 182, 1977 N.D. LEXIS 233 (N.D. 1977).

Where, in trial after effective date of this title of case arising before that date, defense counsel objected to instruction on voluntary intoxication on the ground that it stated law no longer in effect after adoption of the new Criminal Code, defendant had made the election, or given the “consent” provided for in subsection 3, to rely on the provisions of the new Code as to defenses and circumstances in mitigation, and its provisions on those issues were controlling. State v. Jensen, 251 N.W.2d 182, 1977 N.D. LEXIS 233 (N.D. 1977).

—Crimes Charged.

As to crimes committed prior to July 1, 1975, the section under which accused is charged is not considered repealed and remains in full force and effect until all of the matter thereunder has been completed except that, with accused’s consent, Title 12.1 may be applied; legislature intended that persons who violated a penal law prior to effective date of Title 12.1 would be tried and sentenced under the law in effect at the time and that the law violated would not be considered repealed until legal process against the accused had been completed. Kittelson v. Havener, 239 N.W.2d 803, 1976 N.D. LEXIS 198 (N.D. 1976).

Possessing and Transporting Big Game.

Because the offense of illegally possessing and transporting big game is not within Title 12.1, and no level of culpability is specified, the offense is a strict liability offense; accordingly, the elements of the crime were complete when the defendants possessed and transported a dead deer without a proper tag, irrespective of their intentions. State v. Falconer, 426 N.W.2d 10, 1988 N.D. LEXIS 174 (N.D. 1988).

Collateral References.

Failure to rise in state courtroom as constituting criminal contempt, 38 A.L.R.4th 563.

Law Reviews.

A Prosecutor Looks at the New Code, 50 N.D. L. Rev. 631 (1974).

A Hornbook to the North Dakota Criminal Code, 50 N.D. L. Rev. 639 (1974).

Summary of significant decisions rendered by North Dakota Supreme Court in 1988 relating to criminal law and criminal procedure, 64 N.D. L. Rev. 173 (1988).

12.1-01-02. General purposes.

The general purposes of this title are to establish a system of prohibitions, penalties, and correctional measures to deal with conduct that unjustifiably and inexcusably causes or threatens harm to those individual or public interests for which governmental protection is appropriate. To this end, the provisions of this title are intended, and shall be construed, to achieve the following objectives:

  1. To ensure the public safety through: a. vindication of public norms by the imposition of merited punishment; b. the deterrent influence of the penalties hereinafter provided; c. the rehabilitation of those convicted of violations of this title; and d. such confinement as may be necessary to prevent likely recurrence of serious criminal behavior.
  2. By definition and grading of offenses, to define the limits and systematize the exercise of discretion in punishment and to give fair warning of what is prohibited and of the consequences of violation.
  3. To prescribe penalties which are proportionate to the seriousness of offenses and which permit recognition of differences in rehabilitation possibilities among individual offenders.
  4. To safeguard conduct that is without guilt from condemnation as criminal and to condemn conduct that is with guilt as criminal.
  5. To prevent arbitrary or oppressive treatment of persons accused or convicted of offenses.
  6. To define the scope of state interest in law enforcement against specific offenses and to systematize the exercise of state criminal jurisdiction.

Source: S.L. 1973, ch. 116, § 1.

DECISIONS UNDER PRIOR LAW

Analysis

Common Meaning.

In construing statutes the language used was never to be lost sight of and the presumption was that the language was used in no extraordinary sense, but in its common, everyday meaning. Territory v. Stone, 4 N.W. 697, 2 Dakota 155, 1879 Dakota LEXIS 4 (Dakota 1879).

Extension of Terms.

The terms of a statute could not be extended unreasonably even under a liberal construction. City of Mayville v. Rosing, 19 N.D. 98, 123 N.W. 393, 1909 N.D. LEXIS 91 (N.D. 1909).

Penal Statutes.

Penal statutes were to be fairly construed according to the legislative intent as expressed in the enactment, the court refusing on the one hand to extend the punishment to cases which were not clearly embraced in them, and on the other equally refusing by any mere verbal nicety, or forced consideration or equitable interpretation, to exonerate parties plainly within their scope. State v. Fargo Bottling Works Co., 19 N.D. 396, 124 N.W. 387, 1910 N.D. LEXIS 2 (N.D. 1910); State v. Malusky, 59 N.D. 501, 230 N.W. 735, 1930 N.D. LEXIS 169 (N.D. 1930).

12.1-01-03. Proof and presumptions.

  1. No person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. An accused is presumed innocent until proven guilty. The fact that the accused has been arrested, confined, or charged with the offense gives rise to no inference of guilt at the accused’s trial. “Element of an offense” means:
    1. The forbidden conduct;
    2. The attendant circumstances specified in the definition and grading of the offense;
    3. The required culpability;
    4. Any required result; and
    5. The nonexistence of a defense as to which there is evidence in the case sufficient to give rise to a reasonable doubt on the issue.
  2. Subsection 1 does not require negating a defense:
    1. By allegation in the charging document; or
    2. By proof, unless the issue is in the case as a result of evidence sufficient to raise a reasonable doubt on the issue.
  3. Subsection 1 does not apply to any defense which is explicitly designated an “affirmative defense”. An affirmative defense must be proved by the defendant by a preponderance of evidence.
  4. When a statute establishes a presumption, it has the following consequences:
    1. If there is sufficient evidence of the facts which gave rise to the presumption, the presumed fact is deemed sufficiently proved to warrant submission of the issue to a jury unless the court is satisfied that the evidence as a whole clearly negates the presumed fact.
    2. In submitting the issue of the existence of the presumed fact to a jury, the court shall charge that, although the evidence as a whole must establish the presumed fact beyond a reasonable doubt, the jury may arrive at that judgment on the basis of the presumption alone, since the law regards the facts giving rise to the presumption as strong evidence of the fact presumed.
  5. When a statute declares that given facts constitute a prima facie case, proof of such facts warrants submission of a case to the jury with the usual instructions on burden of proof and without additional instructions attributing any special probative force to the facts proved.

Unless it is otherwise provided or the context plainly requires otherwise, if a statute outside this title defining an offense, or a related statute, or a rule or regulation thereunder, contains a provision constituting an exception from criminal liability for conduct which would otherwise be included within the prohibition of the offense, that the defendant came within such exception is a defense.

Source: S.L. 1973, ch. 116, § 1.

Notes to Decisions

Affirmative Defenses.

Because mistake of law is an affirmative defense, the state had no burden to “negate” the defense beyond a reasonable doubt; rather, defendants had the burden of proving the affirmative defense by a preponderance of the evidence. State v. Purdy, 491 N.W.2d 402, 1992 N.D. LEXIS 195 (N.D. 1992).

Entrapment is an affirmative defense under N.D.C.C. § 12.1-05-11(1) and must be proven by the defendant by a preponderance of the evidence. State v. Tester, 1999 ND 60, 592 N.W.2d 515, 1999 N.D. LEXIS 63 (N.D. 1999).

Where defendant’s offer of proof failed to support his claimed affirmative defense of innocent mistake of facts, the trial court did not err in denying his motion in limine requesting an affirmative defense jury instruction. State v. Schmidt, 2002 ND 43, 640 N.W.2d 702, 2002 N.D. LEXIS 42 (N.D. 2002).

Allegations in Criminal Complaint.

It is unnecessary for the state to prove each and every allegation set forth in the criminal complaint; state is only required to prove the elements of the offense charged. State v. Bohl, 317 N.W.2d 790, 1982 N.D. LEXIS 264 (N.D. 1982).

Burden of Proof.

A definition of a crime that does not shift the burden of proof to the accused is constitutional. State v. Vogel, 467 N.W.2d 86, 1991 N.D. LEXIS 40 (N.D. 1991).

The legislature has defined one variation of the crime of actual physical control while under the influence of intoxicating liquor as the accused having a “alcohol concentration of at least ten one-hundredths of one percent by weight at the time of the performance of a chemical test.” Nothing in that definition shifts the burden of proof to the accused. The prosecution must prove each element beyond a reasonable doubt. State v. Vogel, 467 N.W.2d 86, 1991 N.D. LEXIS 40 (N.D. 1991).

In a trial under N.D.C.C. § 39-08-01, the language of N.D.C.C. § 39-20-07(5) was improperly included in instructions to the jury because it has only to do with the judge’s preliminary function of admitting evidence; it has nothing to do with the jury’s function of weighing the evidence. By telling the jury that the test results were received in evidence when the test was fairly administered, this instruction shifted the burden of disputing the test results to the defendant and violated his right to due process. State v. Vogel, 467 N.W.2d 86, 1991 N.D. LEXIS 40 (N.D. 1991).

Improper jury instruction on the defense of lack of criminal responsibility, erroneously placed the burden of proof for an element of the crime upon defendant, rather than upon State, and constituted obvious error warranting a new trial. State v. Johnson, 2001 ND 184, 636 N.W.2d 391, 2001 N.D. LEXIS 224 (N.D. 2001).

Despite testimony that defendant was profoundly psychotic and suffering from delirium tremens at the time of the murder, the jury could have chosen not to believe the testimony, and the state’s evidence that the defendant changed clothes and washed off the victim’s blood supported the finding of guilt beyond a reasonable doubt. State v. Klose, 2003 ND 39, 657 N.W.2d 276, 2003 N.D. LEXIS 31 (N.D. 2003).

Evidence that defendant presented was not sufficient to establish N.D.C.C. § 12.1-05-11 entrapment as an affirmative defense to the charge against defendant of criminal attempt to possess methamphetamine, and, thus, that conviction had to stand. Defendant had the burden of proof of establishing that defense, by a preponderance of the evidence as required by N.D.C.C. § 12.1-01-03, and did not do so because the evidence that police offered defendant a good price in order to induce defendant to buy the methamphetamine and arranged for defendant to purchase methamphetamine despite knowing that defendant was a drug addict was not enough to show that police engaged in the necessary “outrageous conduct” that would cause a person who was not ready to commit the crime to commit it. State v. Schmidt, 2011 ND 238, 807 N.W.2d 593, 2011 N.D. LEXIS 233 (N.D. 2011).

District court erred by taking judicial notice of defendant's prior offenses because the court's ability to do so was limited to matters of pleading, defendant's prior convictions constituted an essential element of her charge that the State still had to prove, the court was required to explain the legal effect of its judicial notice to the jury and clarify that satisfaction of the State burden of persuasion remained solely with the jury. State v. Mann, 2016 ND 53, 876 N.W.2d 710, 2016 N.D. LEXIS 53 (N.D.), vacated, — U.S. —, 137 S. Ct. 114, 196 L. Ed. 2d 5, 2016 U.S. LEXIS 5206 (U.S. 2016).

Element of Offense.

“Grading” spoken of in subdivision (1)(b) refers to relative levels of same offense and does not make attendant circumstances specified in definition and grading of one offense an element of another offense. State v. Dilger, 338 N.W.2d 87, 1983 N.D. LEXIS 373 (N.D. 1983).

Compliance with a statute of limitation is not an element of an offense, but rather a jurisdictional fact. The state must prove compliance with a statute of limitation by a preponderance of the evidence, and must also bear the same burden to prove the existence of any exceptions to a statute of limitation which excuse its application. State v. Tibor, 373 N.W.2d 877, 1985 N.D. LEXIS 390 (N.D. 1985).

In a prosecution for gross sexual imposition, defendant’s knowledge of the victim’s unawareness was an essential element of the offense charged and could not be inferred; because it was missing from the information, the criminal information was defective and the charge was properly dismissed. State v. Frankfurth, 2005 ND 167, 704 N.W.2d 564, 2005 N.D. LEXIS 200 (N.D. 2005), limited, State v. Bertram, 2006 ND 10, 708 N.W.2d 913, 2006 N.D. LEXIS 6 (N.D. 2006).

Intent Instructions.

The presumption contained in North Dakota Pattern Jury Instruction 1313, which states that “It is presumed, however, that an unlawful act is done with an unlawful intent”, is an unconstitutional violation of the due process requirement that the state prove every element of the offense beyond a reasonable doubt. State v. Sheldon, 301 N.W.2d 604, 1980 N.D. LEXIS 342 (N.D. 1980), cert. denied, 450 U.S. 1002, 101 S. Ct. 1711, 68 L. Ed. 2d 204, 1981 U.S. LEXIS 1398 (U.S. 1981).

Jury Instructions.

This section does not require trial court to instruct jury that the presumed fact of innocence is strong evidence of the fact presumed; trial court did not err in failing to give such an instruction where defendant did not request it. State v. Skjonsby, 319 N.W.2d 764, 1982 N.D. LEXIS 265 (N.D. 1982).

In a prosecution for violation of a city shoplifting ordinance, the jury instructions, taken as a whole, could not have been understood by reasonable jurors to require them to conclude from the presumed fact, irrespective of other facts causing them to have a reasonable doubt, that the requisite intention of permanently depriving another of the merchandise was present. The qualifying instruction on presumption made it clear to the jury that the presumption was permissive only and that they were allowed to find the element of intent only if the city provided the predicate facts beyond a reasonable doubt. City of Dickinson v. Gresz, 450 N.W.2d 216, 1989 N.D. LEXIS 252 (N.D. 1989).

Threshold evidentiary standard for a requested instruction in a jury case differs from standard for reviewing evidence after a conviction. State v. Fasching, 461 N.W.2d 102, 1990 N.D. LEXIS 197 (N.D. 1990).

The trial court’s failure to instruct the jury that the State had the burden of proving beyond a reasonable doubt that the defendant did not act in self defense was obvious error. State v. Olander, 1998 ND 50, 575 N.W.2d 658, 1998 N.D. LEXIS 51 (N.D. 1998).

Court’s instruction on defendant’s violation of a disorderly conduct restraining order was not erroneous where it instructed the jury on the essential elements of the offense in language tracking N.D.C.C. § 12.1-31.2-01(8), which required the State to prove beyond a reasonable doubt that defendant had knowledge of the order and that he violated one or more provisions of the order, specifically that he entered the victim’s home and spoke with her. State v. Bertram, 2006 ND 10, 708 N.W.2d 913, 2006 N.D. LEXIS 6 (N.D. 2006).

Proof Under City Ordinance.

City shoplifting ordinance, which established a prima facie presumption regarding the concealment of merchandise, was authorized under section 40-05-01, did not attempt to supersede state law, and was not constitutionally repugnant; it did not define an offense differently from that in the state statute and merely provided a non-mandatory presumption as an evidentiary device for proving the element of intent. City of Dickinson v. Gresz, 450 N.W.2d 216, 1989 N.D. LEXIS 252 (N.D. 1989).

Raising a Defense.

A defendant is entitled to a jury instruction on a legal defense if there is evidence to support it. A defense is raised when there is evidence in the case “sufficient to raise a reasonable doubt on the issue,” and it is error if the trial court refuses to instruct on an issue that has been adequately raised. State v. McIntyre, 488 N.W.2d 612, 1992 N.D. LEXIS 155 (N.D. 1992).

It was not an abuse of discretion to deny defendant’s request for an alibi instruction because, even though the State presented defendant’s assertions that defendant was elsewhere at the time of the crime, defendant did not adequately present such a defense pursuant to N.D.R.Crim.P. 12.1. State v. Kalmio, 2014 ND 101, 846 N.W.2d 752, 2014 N.D. LEXIS 103 (N.D. 2014).

Raising An Issue.

The court, not the jury, has the responsibility to initially determine whether an issue has been adequately raised. State v. McIntyre, 488 N.W.2d 612, 1992 N.D. LEXIS 155 (N.D. 1992).

Review of Evidence on Appeal.

To successfully challenge the sufficiency of evidence on appeal, defendant must show that the evidence, when viewed in the light most favorable to the verdict, permits no reasonable inference of guilt. State v. Fasching, 461 N.W.2d 102, 1990 N.D. LEXIS 197 (N.D. 1990).

Sanity.

Introduction of state’s exhibit containing psychiatrist’s diagnosis that defendant was presently suffering from depressive neurosis was insufficient to raise a reasonable doubt on issue of defendant’s sanity, and therefore state was not required in its case in chief to prove beyond a reasonable doubt that defendant was sane at time of her alleged criminal conduct. State v. Leidholm, 334 N.W.2d 811, 1983 N.D. LEXIS 296 (N.D. 1983).

Self Defense.

By instructing the jury that it had a responsibility to determine if the defendant had presented sufficient evidence to give rise to a reasonable doubt, the court may have confused and misled the jury into believing that defendant carried the burden of proving self defense and excuse by proof beyond a reasonable doubt. The instructions should have merely stated that there was evidence of self defense and excuse and that the state had a duty to negate those defenses by proof beyond a reasonable doubt. State v. McIntyre, 488 N.W.2d 612, 1992 N.D. LEXIS 155 (N.D. 1992).

Self defense is a “defense” and not an “affirmative defense.” State v. Olander, 1998 ND 50, 575 N.W.2d 658, 1998 N.D. LEXIS 51 (N.D. 1998).

Jury reasonably found defendant had not acted in self defense under evidence presented at trial. State v. Greybull, 1998 ND 102, 579 N.W.2d 161, 1998 N.D. LEXIS 109 (N.D. 1998).

State’s Negation of Defense.

State met its burden of negating defense based on section 6-08-16 by showing that payee of check testified that check was not knowingly received as postdated and check was properly dated in usual place. No evidence explained, cryptic notation, “10-20-89,” in different ink on memo line of check. State v. Fasching, 461 N.W.2d 102, 1990 N.D. LEXIS 197 (N.D. 1990).

Trial court’s defense of property instruction was not reversible error because (1) the instruction including language from the defense of property statute did not tell a jury to presume victims reasonably defended their property, (2) defendant’s self-defense claim was fairly presented, and (3) the instruction did not shift the State’s burden to disprove defendant’s self-defense claim or negate a self-defense instruction. State v. Landrus, 2019 ND 162, 930 N.W.2d 176, 2019 N.D. LEXIS 168 (N.D. 2019).

Law Reviews.

Criminal Law — Presumptions and Burden of Proof — Permissive Presumption of Possession Meeting Subjective More-Likely-Than-Not Standard Deemed Constitutional, 56 N.D. L. Rev. 421 (1980).

12.1-01-03.1. Presumption of age.

  1. In determining an individual’s age for purposes of this title, the individual’s date of birth as provided by any of the following is presumed to be the individual’s legal date of birth:
    1. A state government in the form of a birth certificate, other state-issued identification, or a certified copy of a birth certificate that includes the individual’s date of birth;
    2. The United States government in the form of a tribal identification document, military identification, passport, passport card, permanent resident card, certificate of United States citizenship, certificate of naturalization, border crossing card, visa, or other entry document that includes the individual’s date of birth; or
    3. A foreign government in the form of a passport, driver’s license, or other foreign government-issued identity document that includes the individual’s date of birth. If there is a conflict between government issued forms, a government issued birth certificate or a certified copy of a birth certificate takes precedence.
  2. The presumption in subsection 1 may be rebutted by clear and convincing evidence to the contrary.

History. S.L. 2015, ch. 101, § 1, effective August 1, 2015.

12.1-01-04. General definitions. [Effective through August 31, 2022]

As used in this title, unless a different meaning plainly is required:

  1. “Act” or “action” means a bodily movement, whether voluntary or involuntary.
  2. “Acted”, “acts”, and “actions” include, where relevant, “omitted to act” and “omissions to act”.
  3. “Actor” includes, where relevant, a person guilty of an omission.
  4. “Bodily injury” means any impairment of physical condition, including physical pain.
  5. “Court” means any of the following courts: the supreme court, a district court, and where relevant, a municipal court.
  6. “Dangerous weapon” includes any switchblade or gravity knife, machete, scimitar, stiletto, sword, or dagger; any billy, blackjack, sap, bludgeon, cudgel, metal knuckles, or sand club; any slingshot; any bow and arrow, crossbow, or spear; any weapon that will expel, or is readily capable of expelling, a projectile by the action of a spring, compressed air, or compressed gas including any such weapon, loaded or unloaded, commonly referred to as a BB gun, air rifle, or CO2 gun; and any projector of a bomb or any object containing or capable of producing and emitting any noxious liquid, gas, or substance.
  7. “Destructive device” means any explosive, incendiary or poison gas bomb, grenade, mine, rocket, missile, or similar device.
  8. “Explosive” means gunpowders, powders used for blasting, all forms of high explosives, blasting materials, fuses (other than electric circuit breakers), detonators and other detonating agents, smokeless powders, and any chemical compounds, mechanical mixture, or other ingredients in such proportions, quantities, or packing that ignition by fire, by friction, by concussion, by percussion, or by detonation of the compound, or material, or any part thereof may cause an explosion.
  9. “Firearm” means any weapon that will expel, or is readily capable of expelling, a projectile by the action of an explosive and includes any such weapon, loaded or unloaded, commonly referred to as a pistol, revolver, rifle, gun, machine gun, shotgun, bazooka, or cannon.
  10. “Force” means physical action.
  11. “Government” means:
    1. The government of this state or any political subdivision of this state;
    2. Any agency, subdivision, or department of the state or any political subdivision of the state, including the executive, legislative, and judicial branches;
    3. Any corporation or other entity established by law to carry on any governmental function; and
    4. Any commission, corporation, or agency established by statute, compact, or contract between or among governments for the execution of intergovernmental programs.
  12. “Governmental function” includes any activity that one or more public servants are legally authorized to undertake on behalf of government.
  13. “Harm” means loss, disadvantage, or injury to the person affected, and includes loss, disadvantage, or injury to any other person in whose welfare the person affected is interested.
  14. “Included offense” means an offense:
    1. That is established by proof of the same or less than all the facts required to establish commission of the offense charged;
    2. That consists of criminal facilitation of or an attempt or solicitation to commit the offense charged; or
    3. That differed from the offense charged only in that it constitutes a less serious harm or risk of harm to the same person, property, or public interest, or because a lesser degree of culpability suffices to establish its commission.
  15. “Includes” should be read as if the phrase “but is not limited to” were also set forth.
  16. “Law enforcement officer” or “peace officer” means a public servant authorized by law or by a government agency or branch to enforce the law and to conduct or engage in investigations or prosecutions for violations of law.
  17. “Local” means of or pertaining to any political subdivision of the state.
  18. “Manifest injustice” means a specific finding by the court that the imposition of sentence is unreasonably harsh or shocking to the conscience of a reasonable individual, with due consideration of the totality of circumstances.
  19. “Offense” means conduct for which a term of imprisonment or a fine is authorized by statute after conviction.
  20. “Official action” includes a decision, opinion, recommendation, vote, or other exercise of discretion by any government agency.
  21. “Official proceeding” means a proceeding heard or which may be heard before any government agency or branch or public servant authorized to take evidence under oath, including any referee, hearing examiner, commissioner, notary, or other person taking testimony or a deposition in connection with any such proceeding.
  22. “Omission” means a failure to act.
  23. As used in this title and in sections outside this title which define offenses, “person” includes, where relevant, a corporation, limited liability company, partnership, unincorporated association, or other legal entity. When used to designate a party whose property may be the subject of action constituting an offense, the word “person” includes a government that may lawfully own property in this state.
  24. “Political subdivision” as used in this title and in any statute outside this title which defines an offense means a county, city, school district, township, and any other local governmental entity created by law.
  25. “Public servant” as used in this title and in any statute outside this title which defines an offense means any officer or employee of government, including law enforcement officers, whether elected or appointed, and any person participating in the performance of a governmental function. The term does not include witnesses.
  26. “Risk assessment” means an initial phase with a secondary process approved by the department of human services for the evaluation of the likelihood a person that committed an offense will commit another similar offense. The initial phase is an assessment tool that is administered by a trained probation and parole officer. A predetermined score on the initial phase initiates the secondary process that includes a clinical interview, psychological testing, and verification through collateral information or psychophysiological testing, or both. The department of human services shall perform the secondary process of the risk assessment.
  27. “Serious bodily injury” means bodily injury that creates a substantial risk of death or which causes serious permanent disfigurement, unconsciousness, extreme pain, permanent loss or impairment of the function of any bodily member or organ, a bone fracture, or impediment of air flow or blood flow to the brain or lungs.
  28. “Signature” includes any name, mark, or sign written or affixed with intent to authenticate any instrument or writing.
  29. “Substantial bodily injury” means a substantial temporary disfigurement, loss, or impairment of the function of any bodily member or organ.
  30. “Thing of value” or “thing of pecuniary value” means a thing of value in the form of money, tangible or intangible property, commercial interests, or anything else the primary significance of which is economic gain to the recipient.
  31. “Tier 1 mental health professional” has the same meaning as provided under section 25-01-01.

Source: S.L. 1973, ch. 116, § 1; 1975, ch. 116, §§ 1, 2; 1981, ch. 320, § 31; 1985, ch. 175, § 1; 1987, ch. 374, § 10; 1991, ch. 326, § 41; 1993, ch. 54, § 106; 1997, ch. 118, § 1; 1999, ch. 120, § 1; 1999, ch. 277, § 1; 2007, ch. 118, § 1; 2015, ch. 116, § 1, effective August 1, 2015; 2017, ch. 97, § 2, effective August 1, 2017.

Notes to Decisions

Bodily Injury.

Evidence was sufficient to convict defendant of simple assault-domestic violence because he caused bodily injury to a victim; although the victim testified that she did not feel any pain, it was a matter of common experience and understanding that was left to the jury. A reporting witness testified to seeing defendant strike the alleged victim repeatedly in the upper body, and defendant had a fresh laceration on his arm after the alleged assault; moreover, officers testified that it was not uncommon to investigate assaults where there was no indication of physical injury. State v. Hannah, 2016 ND 11, 873 N.W.2d 668, 2016 N.D. LEXIS 7 (N.D. 2016).

Child abuse statute was not unconstitutionally vague because the statute’s reference to bodily injury as defined in another statute gave sufficient notice to those charged with enforcing the law and put a reasonable person on adequate notice as to what conduct was proscribed as constituting child abuse. State v. Vetter, 2019 ND 262, 934 N.W.2d 543, 2019 N.D. LEXIS 257 (N.D. 2019).

Defendant’s acquittal of aggravated assault did not bar restitution because (1) defendant was only acquitted of causing a victim’s unconsciousness, and (2) defendant assault conviction was sufficient to support a restitution award. State v. McAllister, 2020 ND 48, 939 N.W.2d 502, 2020 N.D. LEXIS 45 (N.D. 2020).

Dangerous Weapon.

Defendant was properly found guilty of aggravated assault with a dangerous weapon because a rational fact finder could conclude beyond a reasonable doubt the flashlight used by defendant constituted a dangerous weapon as the victim testified that defendant struck him with a long cylinder black object that was very similar to a Maglite, that he saw defendant swing a cylinder object, and that defendant used a powerful overhand blow to strike the victim in the head. State v. McCreary, 2021 ND 212, 967 N.W.2d 447, 2021 N.D. LEXIS 214 (N.D. 2021).

Criminal Facilitation.

Criminal facilitation is a lesser included offense to accomplice liability. State v. Langan, 410 N.W.2d 149, 1987 N.D. LEXIS 368 (N.D. 1987).

Dangerous Weapon.
—Question of Fact.

Whether the defendant was in possession of a dangerous weapon while committing the offense charged is a question for the trier of fact. State v. Schweitzer, 510 N.W.2d 612, 1994 N.D. LEXIS 17 (N.D. 1994).

Whether or not an unloaded BB gun was a dangerous weapon was a question of fact for the jury’s determination; once the jury made that factual finding, and the others required to reach a verdict, the question of sentencing, a legal question, was for the court to decide. State v. Clinkscales, 536 N.W.2d 661, 1995 N.D. LEXIS 152 (N.D. 1995).

—Tear Gas Gun.

There was substantial evidence to support the trial court’s findings that a tear gas gun was a dangerous weapon. State v. Schweitzer, 510 N.W.2d 612, 1994 N.D. LEXIS 17 (N.D. 1994).

—Vehicle.

Defendant’s conviction for aggravated assault with a dangerous weapon was proper because the jury could have reasonably found that defendant used a vehicle as a dangerous weapon under N.D.C.C. § 12.1-01-04(6); defendant intentionally drove a vehicle forward while the victim backpedaled. Defendant continued forward after the victim fell and both the front and rear tire of defendant’s vehicle went over the victim. State v. Vetter, 2013 ND 4, 826 N.W.2d 334, 2013 N.D. LEXIS 2 (N.D. 2013).

Vehicle may be considered a dangerous weapon under N.D.C.C. § 12.1-01-04(6). State v. Vetter, 2013 ND 4, 826 N.W.2d 334, 2013 N.D. LEXIS 2 (N.D. 2013).

In a case in which defendant pled guilty to leaving the scene of an accident involving injury and aggravated reckless driving, defendant’s sentence was vacated and the case was remanded for resentencing as the district court substantially relied upon an impermissible factor in sentencing defendant to jail because the case did not implicate an offense involving domestic violence, sexual offender registration, or mandatory terms of incarceration; defendant was not charged with, nor did he plead guilty to, any offense involving a dangerous weapon; and the dangerous weapon exception to the presumptive probation statute did not apply in defendant’s case. State v. Christensen, 2019 ND 11, 921 N.W.2d 436, 2019 N.D. LEXIS 18 (N.D. 2019).

Explosives.

The general definition of the term “explosives” as contained in subsection (8) should be applied to ascertain the meaning of the term “explosives” in section 62.1-02-11, since there is no definition provided in Title 62.1. State v. Johnson, 417 N.W.2d 365, 1987 N.D. LEXIS 448 (N.D. 1987).

Force.

Where, in a prosecution for gross sexual imposition, the court refused a jury request for a definition of the term “force” which is defined by subsection 11, error was committed, but the error was harmless where counsel did not bring the definition to the court’s attention nor object to the answer which was given, and there was substantial evidence to support the conviction. State v. Smuda, 419 N.W.2d 166, 1988 N.D. LEXIS 33 (N.D. 1988).

Trial court did not commit obvious error by not including a jury instruction on self-defense during defendant’s trial for disorderly conduct because without a showing of physical action upon another person, as defined in N.D.C.C. § 12.1-01-04(11), the failure to instruct the jury on self-defense was not error, let alone obvious error. State v. Gresz, 2006 ND 135, 717 N.W.2d 583, 2006 N.D. LEXIS 138 (N.D. 2006).

The serious nature of sexual assault is underscored by the North Dakota legislature classifying them as class AA felonies, carrying a potential sentence of life imprisonment without parole under N.D.C.C. §§ 12.1-20-03(3)(a) and 12.1-32-01(1). The North Dakota legislature has defined force to mean physical action in N.D.C.C. § 12.1-01-04(11), and it is the force or physical action by defendant which must compel the victim to submit to a sex act for a crime to be committed under N.D.C.C. § 12.1-20-03(1)(a); in the absence of force or threats of death or serious bodily injury, there is no crime under § 12.1-20-03(1)(a). State v. Vantreece, 2007 ND 126, 736 N.W.2d 428, 2007 N.D. LEXIS 127 (N.D. 2007).

Included Offense.

Where the same evidence from which a juror could infer that the defendant aided another with intent that the other commit an offense (accomplice liability) could also allow a juror to infer that she only aided another with knowledge that the other intended to commit an offense (facilitation), there was evidence which could create a reasonable doubt as to accomplice liability and support a conviction of criminal facilitation, and the trial court’s refusal to give a lesser included offense instruction constituted prejudicial error. State v. Langan, 410 N.W.2d 149, 1987 N.D. LEXIS 368 (N.D. 1987).

A defendant seeking a lesser included offense instruction must show (1) that the offense is a lesser included offense of the crime charged; and (2) that there is evidence which creates a reasonable doubt as to the greater offense, but supports a conviction of the lesser offense beyond a reasonable doubt. State v. McKing, 1999 ND 81, 593 N.W.2d 342, 1999 N.D. LEXIS 72 (N.D. 1999).

Where defendant was charged with attempted murder for his involvement in a police shoot-out, the trial court properly denied his requested instruction on reckless endangerment as an included offense. A person can be convicted of attempted murder for having taken a substantial step toward commission of the crime of murder even if there never was a substantial risk of serious bodily injury or death to another as required for reckless endangerment; in this case, defendant was properly convicted of both offenses for firing shots at police officers. State v. Keller, 2005 ND 86, 695 N.W.2d 703, 2005 N.D. LEXIS 94 (N.D. 2005).

“Included offense” as used in N.D.C.C. § 12.1-01-04(15) and “lesser included offense” are not equivalent terms. State v. Keller, 2005 ND 86, 695 N.W.2d 703, 2005 N.D. LEXIS 94 (N.D. 2005).

Offense.

Delivery of a controlled substance constitutes an “offense” as defined in subsection 20. State v. Coutts, 364 N.W.2d 88, 1985 N.D. LEXIS 270 (N.D. 1985).

Definition of “offense” in N.D.C.C. § 12.1-01-04(20) applies to N.D.C.C. §§ 39-08-01 and 39-06-42. Title 39 does not provide its own definition of “offense” and there is no expressed intent to use a different definition for N.D.C.C. §§ 39-08-01 or 39-06-42. State v. Skarsgard, 2007 ND 159, 740 N.W.2d 64, 2007 N.D. LEXIS 167 (N.D. 2007).

N.D.C.C. § 12.1-01-05 precluded the City of Fargo, North Dakota, a home rule city, from imposing fees for noncriminal traffic offenses that exceeded the limits set forth for equivalent violations in N.D.C.C. § 39-06.1-06, because N.D.C.C. § 12.1-01-05 clearly and unambiguously precludes a home rule city from superseding criminal or noncriminal offenses defined by State law, when a penalty that exceeds the limits delineated by equivalent State law supersedes State law; the word “offense” rather than the word “crimes” is used in the text of N.D.C.C. § 12.1-01-05, and an “offense” under N.D.C.C. § 12.1-01-05 includes noncriminal, as well as criminal offenses. Sauby v. City of Fargo, 2008 ND 60, 747 N.W.2d 65, 2008 N.D. LEXIS 60 (N.D. 2008).

District court abused its discretion by misapplying or misinterpreting the law when it sentenced defendant for conspiracy to commit kidnapping as a dangerous special offender because his previous child abuse offense was not a similar offense in terms of its elements or its underlying conduct; in the child abuse offense, defendant injured his infant son, but his conduct in the conspiracy to commit kidnapping offense did not cause physical injury to the victim’s baby. State v. Hoehn, 2019 ND 222, 932 N.W.2d 553, 2019 N.D. LEXIS 225 (N.D. 2019).

Peace Officer.

The meaning of “peace officer,” as explained in subdivision 17 of this section, applied to former N.D.C.C. ch. 12-62. Under former N.D.C.C. § 12-62-08 (see now N.D.C.C. ch. 12-63) training was mandatory for any “public servant authorized…to enforce the law and to conduct or engage in investigations or prosecutions for violations of law.” This definition certainly included law enforcement officers, other than detectives, without excluding those engaged in jail or detention work. Moses v. Burleigh County, 438 N.W.2d 186, 1989 N.D. LEXIS 69 (N.D. 1989).

Presentence Investigation.

Defendant’s right to counsel was satisfied when defense counsel was given notice and an opportunity to consult with the defendant prior to the state-sponsored psychiatric examination; the court was not required to order the Department of Corrections to allow defense counsel to be present during the psycho-sexual evaluation. State v. Schmidt, 2021 ND 137, 962 N.W.2d 612, 2021 N.D. LEXIS 130 (N.D. 2021).

Serious Bodily Injury.

Permanent reduction in the vision on one eye, with a resulting need to wear corrective lenses, is a “serious bodily injury” under this section which supports conviction of aggravated assault under N.D.C.C. § 12.1-17-02. Dellwo v. R.D.B. (In the Interest of R.D.B.), 1998 ND 15, 575 N.W.2d 420, 1998 N.D. LEXIS 4 (N.D. 1998).

During a traffic stop, a police officer made a passenger stand outside after midnight in freezing cold weather and refused to allow him to sit in the officer’s car; the passenger was later treated for frostbite. The evidence was sufficient to support the police officer’s conviction for reckless endangerment in violation of N.D.C.C. § 12.1-17-03; by refusing to allow the passenger to sit in his squad car, he created a substantial risk of bodily injury under N.D.C.C. § 12.1-01-04(29). State v. O'Toole, 2009 ND 174, 773 N.W.2d 201, 2009 N.D. LEXIS 184 (N.D. 2009).

Reasoning mind reasonably could determine the Department of Human Services finding that the father willfully inflicted an impairment of physical condition, including physical pain, upon the child was proven by the weight of the evidence from the entire record as there was evidence that the father struck the child approximately 24 times over a two-hour period with a wooden backscratcher, and although administered through a pair of pants and a diaper, the force of the spankings caused two large purple bruises the size of fifty-cent pieces on the child’s buttocks; there was evidence, including admissions from the father, that the child cried each time he was spanked and that the spankings were causing pain to the child. Simons v. State, 2011 ND 190, 803 N.W.2d 587, 2011 N.D. LEXIS 186 (N.D. 2011).

Father failed to clearly demonstrate that the child abuse statutes were unconstitutionally vague and contravened the federal or state constitution; the statute need not set out in explicit detail all possible factual scenarios that would fall within its reach; it need only give adequate and fair warning, when measured by the common understanding and practice of a “reasonable person,” of the proscribed conduct. Simons v. State, 2011 ND 190, 803 N.W.2d 587, 2011 N.D. LEXIS 186 (N.D. 2011).

Defendant’s conviction for menacing was supported by the evidence because the record revealed that during an encounter with police officers, defendant threatened to “kick their ass” and “put them in the hospital,” and he took at least one step toward the officers before one officer subdued him; defendant’s statements to the officers denoted sufficient imminency of serious bodily injury under N.D.C.C. § 12.1-01-04(29). State v. Bruce, 2012 ND 140, 818 N.W.2d 747, 2012 N.D. LEXIS 134 (N.D. 2012).

Although the N.D.C.C. § 12.1-01-04 definition of “serious bodily injury” was removed from N.D.C.C. § 39-08-01.2(2), the legislative history does not plainly indicate the intent was to prohibit the use of that definition; removing the § 12.1-01-04 definition of “serious bodily injury” from § 39-08-01.2(2) allows a court or jury to look to other accepted definitions of “serious bodily injury” in addition to the § 12.1-01-04 definition. State v. Montplaisir, 2015 ND 237, 869 N.W.2d 435, 2015 N.D. LEXIS 242 (N.D. 2015).

Legislative history's silence on the removal of the N.D.C.C. § 12.1-01-04 definition of “serious bodily injury” from N.D.C.C. § 39-08-01.2(2) is indicative of an intent that the criminal vehicular statute not be exclusively limited to the definition of “serious bodily injury” under § 12.1-01-04; in other words, the modification broadened what the district court could consider in defining the phrase, rather than prohibit the use of the statutory definition under § 12.1-01-04. State v. Montplaisir, 2015 ND 237, 869 N.W.2d 435, 2015 N.D. LEXIS 242 (N.D. 2015).

District court did not err in using the definitions of “serious bodily injury” and “substantial bodily injury” from N.D.C.C. § 12.1-01-04 in addressing defendant's constitutional arguments in his motions to dismiss; given the established definitions of “serious bodily injury” and “substantial bodily injury,” along with other courts' holdings regarding the phrases, § 39-08-01.2(2) is not unconstitutionally vague. State v. Montplaisir, 2015 ND 237, 869 N.W.2d 435, 2015 N.D. LEXIS 242 (N.D. 2015).

It was reasonable for the jury to find defendant guilty of aggravated assault because the testimony that his wife felt as though she was going to pass out, along with a doctor’s testimony that her injuries were consistent with strangulation, constituted “serious bodily injury”; the testimony stating defendant intentionally put his wife in a choke hold satisfied the requirement that the conduct be “willful.” State v. Abdiwali Mohamud, 2019 ND 101, 925 N.W.2d 396, 2019 N.D. LEXIS 109 (N.D. 2019).

Defendant’s motion for a judgment of acquittal was properly denied because the evidence was sufficient to sustain defendant’s conviction for aggravated assault as he willfully caused serious bodily injury to the victim because the victim testified that defendant strangled her; her testimony alone was sufficient to sustain defendant’s conviction; and the State introduced pictures of the victim showing bruising around her neck, and the emergency room doctor testified the bruising could have been caused by strangulation. State v. Polk, 2020 ND 248, 950 N.W.2d 764, 2020 N.D. LEXIS 252 (N.D. 2020).

Law Reviews.

Indictment and Information Included Offenses: The North Dakota Supreme Court Holds that Actual Physical Control of a Motor Vehicle Under the Influence of Alcohol is a Lesser Included Offense of Driving a Motor Vehicle While Under the Influence of Alcohol, 74 N.D. L. Rev. 787 (1998).

North Dakota Supreme Court Review (State v. Vantreece, 2007 ND 126, 736 N.W.2d 428 (2007)), see 84 N.D. L. Rev. 567 (2008).

12.1-01-04. General definitions. [Effective September 1, 2022]

As used in this title, unless a different meaning plainly is required:

  1. “Act” or “action” means a bodily movement, whether voluntary or involuntary.
  2. “Acted”, “acts”, and “actions” include, where relevant, “omitted to act” and “omissions to act”.
  3. “Actor” includes, where relevant, a person guilty of an omission.
  4. “Bodily injury” means any impairment of physical condition, including physical pain.
  5. “Court” means any of the following courts: the supreme court, a district court, and where relevant, a municipal court.
  6. “Dangerous weapon” includes any switchblade or gravity knife, machete, scimitar, stiletto, sword, or dagger; any billy, blackjack, sap, bludgeon, cudgel, metal knuckles, or sand club; any slingshot; any bow and arrow, crossbow, or spear; any weapon that will expel, or is readily capable of expelling, a projectile by the action of a spring, compressed air, or compressed gas including any such weapon, loaded or unloaded, commonly referred to as a BB gun, air rifle, or CO2 gun; and any projector of a bomb or any object containing or capable of producing and emitting any noxious liquid, gas, or substance.
  7. “Destructive device” means any explosive, incendiary or poison gas bomb, grenade, mine, rocket, missile, or similar device.
  8. “Explosive” means gunpowders, powders used for blasting, all forms of high explosives, blasting materials, fuses (other than electric circuit breakers), detonators and other detonating agents, smokeless powders, and any chemical compounds, mechanical mixture, or other ingredients in such proportions, quantities, or packing that ignition by fire, by friction, by concussion, by percussion, or by detonation of the compound, or material, or any part thereof may cause an explosion.
  9. “Firearm” means any weapon that will expel, or is readily capable of expelling, a projectile by the action of an explosive and includes any such weapon, loaded or unloaded, commonly referred to as a pistol, revolver, rifle, gun, machine gun, shotgun, bazooka, or cannon.
  10. “Force” means physical action.
  11. “Government” means:
    1. The government of this state or any political subdivision of this state;
    2. Any agency, subdivision, or department of the state or any political subdivision of the state, including the executive, legislative, and judicial branches;
    3. Any corporation or other entity established by law to carry on any governmental function; and
    4. Any commission, corporation, or agency established by statute, compact, or contract between or among governments for the execution of intergovernmental programs.
  12. “Governmental function” includes any activity that one or more public servants are legally authorized to undertake on behalf of government.
  13. “Harm” means loss, disadvantage, or injury to the person affected, and includes loss, disadvantage, or injury to any other person in whose welfare the person affected is interested.
  14. “Included offense” means an offense:
    1. That is established by proof of the same or less than all the facts required to establish commission of the offense charged;
    2. That consists of criminal facilitation of or an attempt or solicitation to commit the offense charged; or
    3. That differed from the offense charged only in that it constitutes a less serious harm or risk of harm to the same person, property, or public interest, or because a lesser degree of culpability suffices to establish its commission.
  15. “Includes” should be read as if the phrase “but is not limited to” were also set forth.
  16. “Law enforcement officer” or “peace officer” means a public servant authorized by law or by a government agency or branch to enforce the law and to conduct or engage in investigations or prosecutions for violations of law.
  17. “Local” means of or pertaining to any political subdivision of the state.
  18. “Manifest injustice” means a specific finding by the court that the imposition of sentence is unreasonably harsh or shocking to the conscience of a reasonable individual, with due consideration of the totality of circumstances.
  19. “Offense” means conduct for which a term of imprisonment or a fine is authorized by statute after conviction.
  20. “Official action” includes a decision, opinion, recommendation, vote, or other exercise of discretion by any government agency.
  21. “Official proceeding” means a proceeding heard or which may be heard before any government agency or branch or public servant authorized to take evidence under oath, including any referee, hearing examiner, commissioner, notary, or other person taking testimony or a deposition in connection with any such proceeding.
  22. “Omission” means a failure to act.
  23. As used in this title and in sections outside this title which define offenses, “person” includes, where relevant, a corporation, limited liability company, partnership, unincorporated association, or other legal entity. When used to designate a party whose property may be the subject of action constituting an offense, the word “person” includes a government that may lawfully own property in this state.
  24. “Political subdivision” as used in this title and in any statute outside this title which defines an offense means a county, city, school district, township, and any other local governmental entity created by law.
  25. “Public servant” as used in this title and in any statute outside this title which defines an offense means any officer or employee of government, including law enforcement officers, whether elected or appointed, and any person participating in the performance of a governmental function. The term does not include witnesses.
  26. “Risk assessment” means an initial phase with a secondary process approved by the department of health and human services for the evaluation of the likelihood a person that committed an offense will commit another similar offense. The initial phase is an assessment tool that is administered by a trained probation and parole officer. A predetermined score on the initial phase initiates the secondary process that includes a clinical interview, psychological testing, and verification through collateral information or psychophysiological testing, or both. The department of health and human services shall perform the secondary process of the risk assessment.
  27. “Serious bodily injury” means bodily injury that creates a substantial risk of death or which causes serious permanent disfigurement, unconsciousness, extreme pain, permanent loss or impairment of the function of any bodily member or organ, a bone fracture, or impediment of air flow or blood flow to the brain or lungs.
  28. “Signature” includes any name, mark, or sign written or affixed with intent to authenticate any instrument or writing.
  29. “Substantial bodily injury” means a substantial temporary disfigurement, loss, or impairment of the function of any bodily member or organ.
  30. “Thing of value” or “thing of pecuniary value” means a thing of value in the form of money, tangible or intangible property, commercial interests, or anything else the primary significance of which is economic gain to the recipient.
  31. “Tier 1 mental health professional” has the same meaning as provided under section 25-01-01.

Source: S.L. 1973, ch. 116, § 1; 1975, ch. 116, §§ 1, 2; 1981, ch. 320, § 31; 1985, ch. 175, § 1; 1987, ch. 374, § 10; 1991, ch. 326, § 41; 1993, ch. 54, § 106; 1997, ch. 118, § 1; 1999, ch. 120, § 1; 1999, ch. 277, § 1; 2007, ch. 118, § 1; 2015, ch. 116, § 1, effective August 1, 2015; 2017, ch. 97, § 2, effective August 1, 2017; 2021, ch. 352, § 20, effective September 1, 2022.

12.1-01-05. Crimes defined by state law shall not be superseded by city or county ordinance or by home rule city’s or county’s charter or ordinance.

Except as provided in section 40-05-06, an offense defined in this title or elsewhere by law may not be superseded by any city or county ordinance, or city or county home rule charter, or by an ordinance adopted pursuant to such a charter, and all such offense definitions shall have full force and effect within the territorial limits and other jurisdiction of home rule cities or counties. This section does not preclude any city or county from enacting any ordinance containing penal language when otherwise authorized to do so by law.

Source: S.L. 1973, ch. 104, § 1; 1975, ch. 116, § 3; 1985, ch. 152, § 13; 2019, ch. 334, § 1, effective August 1, 2019.

Notes to Decisions

Action Precluded.

N.D.C.C. § 12.1-01-05 precluded the City of Fargo, North Dakota, a home rule city, from imposing fees for noncriminal traffic offenses that exceeded the limits set forth for equivalent violations in N.D.C.C. § 39-06.1-06, because N.D.C.C. § 12.1-01-05 clearly and unambiguously precludes a home rule city from superseding criminal or noncriminal offenses defined by State law, when a penalty that exceeds the limits delineated by equivalent State law supersedes State law; the word “offense” rather than the word “crimes” is used in the text of N.D.C.C. § 12.1-01-05, and an “offense” under N.D.C.C. § 12.1-01-05 includes noncriminal, as well as criminal offenses. Sauby v. City of Fargo, 2008 ND 60, 747 N.W.2d 65, 2008 N.D. LEXIS 60 (N.D. 2008).

Appeal.

A city has a right to appeal pursuant to N.D.C.C. § 29-28-07 when the complaint alleges conduct violative of a city ordinance which is also expressly prohibited by state statute. City of Bismarck v. Hoopman, 421 N.W.2d 466, 1988 N.D. LEXIS 85 (N.D. 1988).

Authority of Municipal Ordinance.

The authority of a city to impose a penalty by municipal ordinance which differs from the penalty imposed by the state law is limited to those situations in which the maximum allowable municipal penalty is lesser than the state law penalty for an equivalent statute. City of Fargo v. Little Brown Jug, 468 N.W.2d 392, 1991 N.D. LEXIS 72 (N.D. 1991).

Conflict with Constitution.

City disorderly conduct ordinance did not attempt to prohibit or penalize any speech other than that which was constitutionally prohibited by N.D.C.C. § 12.1-31-01; contained additional language which only clarified the particular language which it prohibited, literally expressing what the state statute must be construed to include to be constitutional; did not supersede the state statute; and as the ordinance stood in its entirety, was not facially susceptible of application to constitutionally protected speech and therefore not unconstitutional. City of Bismarck v. Nassif, 449 N.W.2d 789, 1989 N.D. LEXIS 249 (N.D. 1989).

Enactment of City Ordinance.

A city may enact an ordinance which defines an offense in language similar to state law, but provides for a lesser penalty than the state law. City of Fargo v. Little Brown Jug, 468 N.W.2d 392, 1991 N.D. LEXIS 72 (N.D. 1991).

Legislative Intent.

The legislature’s intent to uniformly apply criminal law throughout the state, as expressed in this section, would not be carried out if complaints dismissed by county court were appealable but complaints dismissed by municipal courts were not appealable. City of Bismarck v. Hoopman, 421 N.W.2d 466, 1988 N.D. LEXIS 85 (N.D. 1988).

Ordinance Authorized by Law.

City shoplifting ordinance, which established a prima facie presumption regarding the concealment of merchandise, was authorized under N.D.C.C. § 40-05-01, did not attempt to supersede state law, and was not constitutionally repugnant; it did not define an offense differently from that in the state statute and merely provided a non-mandatory presumption as an evidentiary device for proving the element of intent. City of Dickinson v. Gresz, 450 N.W.2d 216, 1989 N.D. LEXIS 252 (N.D. 1989).

County had authority to enact ordinances for the health, safety, and welfare of its residents and its enactment of animal control ordinance did not exceed the county’s statutory authority in that regard under N.D.C.C. § 11-09.1-05(5). The ordinance was not in conflict with state law as state law only prohibited dogs from habitually molesting peaceful persons as recognized in N.D.C.C. § 42-03-01, a county ordinance ordinarily superseded a state law pursuant to N.D.C.C. § 11-09.1-04 where the law and ordinance addressed the same subject and they conflicted, and under N.D.C.C. § 12.1-01-05 the ordinance was not in conflict with state law. State v. Brown, 2009 ND 150, 771 N.W.2d 267, 2009 N.D. LEXIS 159 (N.D. 2009).

Ordinance Clarifying Prohibited Conduct.

City disorderly conduct ordinance did not attempt to prohibit or penalize any speech other than that which is constitutionally prohibited by the state statute, N.D.C.C. § 12.1-31-01. The additional language of the ordinance only clarifies the particular language which it prohibits. It literally expresses what the state statute must be construed to include to be constitutional. Accordingly, the ordinance has not superseded the state statute. City of Bismarck v. Schoppert, 450 N.W.2d 757, 1990 N.D. LEXIS 2 (N.D. 1990).

Regulation of Use and Sale of Alcohol.

In order to harmonize the statutes granting and limiting the power of a municipality with this section, and to avoid an implicit repeal of that power to regulate the use and sale of alcoholic beverages, the prohibition in this section against a municipal ordinance superseding state law does not prevent a municipality from enacting an ordinance with a penalty which differs from the penalty which could be imposed under similar state law when the city has enacted an ordinance authorizing imposition of up to the maximum penalty the city may impose under state law, and the enactment is in an area of law in which the city is authorized to engage in regulation through the enactment of an ordinance. City of Fargo v. Little Brown Jug, 468 N.W.2d 392, 1991 N.D. LEXIS 72 (N.D. 1991).

The regulation of the use and sale of alcohol by a municipality is limited to imposing a penalty equal to a class B misdemeanor. City of Fargo v. Little Brown Jug, 468 N.W.2d 392, 1991 N.D. LEXIS 72 (N.D. 1991).

For a case noting possible equal protection violations where a city enacts an ordinance with penalties which differ from the penalties imposed by a parallel state statute, see City of Fargo v. Little Brown Jug, 468 N.W.2d 392, 1991 N.D. LEXIS 72 (N.D. 1991).

CHAPTER 12.1-02 Liability and Culpability

12.1-02-01. Basis of liability for offenses.

  1. A person commits an offense only if the person engages in conduct, including an act, an omission, or possession, in violation of a statute which provides that the conduct is an offense.
  2. A person who omits to perform an act does not commit an offense unless the person has a legal duty to perform the act, nor shall such an omission be an offense if the act is performed on the person’s behalf by a person legally authorized to perform it.

Source: S.L. 1973, ch. 116, § 2.

Notes to Decisions

Level of Culpability.

Under this section and N.D.C.C. § 12.1-02-02(1), the level of culpability for an offense is analyzed at the time a person engages in the conduct that constitutes an offense. State v. Jahner, 2003 ND 36, 657 N.W.2d 266, 2003 N.D. LEXIS 32 (N.D. 2003).

DECISIONS UNDER PRIOR LAW

Failure to Act.

Statute making it a crime to perform a prohibited act even if no statute set forth a penalty for that act did not make it a criminal offense to fail to do an act which was required by statute. Langer v. Goode, 21 N.D. 462, 131 N.W. 258, 1911 N.D. LEXIS 112 (N.D. 1911).

Forbidden Act.

Where a certain act was forbidden and the forbidden act was done, and a punishment was prescribed for the doing of the forbidden act, such act was a crime. In re Hogan, 8 N.D. 301, 78 N.W. 1051, 1899 N.D. LEXIS 7 (N.D. 1899).

Practice of Accounting.

Since the statute relating to accountancy neither declared it to be a crime for one to practice, nor prescribed any punishment or penalty upon one who practiced, without a certificate from the board of accountancy, the statute did not create a crime. Brissman v. Thistlethwaite, 49 N.D. 417, 192 N.W. 85, 1922 N.D. LEXIS 72 (N.D. 1922).

Law Reviews.

How to Identify Criminals and Other Citizens of North Dakota After July 1, 1975, 50 N.D. L. Rev. 617 (1974).

12.1-02-02. Requirements of culpability.

  1. For the purposes of this title, a person engages in conduct:
    1. “Intentionally” if, when he engages in the conduct, it is his purpose to do so.
    2. “Knowingly” if, when he engages in the conduct, he knows or has a firm belief, unaccompanied by substantial doubt, that he is doing so, whether or not it is his purpose to do so.
    3. “Recklessly” if he engages in the conduct in conscious and clearly unjustifiable disregard of a substantial likelihood of the existence of the relevant facts or risks, such disregard involving a gross deviation from acceptable standards of conduct, except that, as provided in section 12.1-04-02, awareness of the risk is not required where its absence is due to self-induced intoxication.
    4. “Negligently” if he engages in the conduct in unreasonable disregard of a substantial likelihood of the existence of the relevant facts or risks, such disregard involving a gross deviation from acceptable standards of conduct.
    5. “Willfully” if he engages in the conduct intentionally, knowingly, or recklessly.
  2. If a statute or regulation thereunder defining a crime does not specify any culpability and does not provide explicitly that a person may be guilty without culpability, the culpability that is required is willfully.
    1. Except as otherwise expressly provided, where culpability is required, that kind of culpability is required with respect to every element of the conduct and to those attendant circumstances specified in the definition of the offense, except that where the required culpability is “intentionally”, the culpability required as to an attendant circumstance is “knowingly”.
    2. Except as otherwise expressly provided, if conduct is an offense if it causes a particular result, the required degree of culpability is required with respect to the result.
    3. Except as otherwise expressly provided, culpability is not required with respect to any fact which is solely a basis for grading.
    4. Except as otherwise expressly provided, culpability is not required with respect to facts which establish that a defense does not exist, if the defense is defined in chapters 12.1-01 through 12.1-06; otherwise the least kind of culpability required for the offense is required with respect to such facts.
    5. A factor as to which it is expressly stated that it must “in fact” exist is a factor for which culpability is not required.
  3. Any lesser degree of required culpability is satisfied if the proven degree of culpability is higher.
  4. Culpability is not required as to the fact that conduct is an offense, except as otherwise expressly provided in a provision outside this title.

Source: S.L. 1973, ch. 116, § 2.

Notes to Decisions

Applicability.

This section applies only to offenses or crimes described in Title 12.1. City of Dickinson v. Mueller, 261 N.W.2d 787, 1977 N.D. LEXIS 172 (N.D. 1977).

This section applies only to recodified Criminal Code and not to earlier statutes not repealed by recodification. State v. North Dakota Educ. Ass'n, 262 N.W.2d 731, 1978 N.D. LEXIS 217 (N.D. 1978).

Subsection (2) is only applicable to Title 12.1, and the willful culpability level will not be read into other chapters unless the legislature specifically states as such. State v. Eldred, 1997 ND 112, 564 N.W.2d 283, 1997 N.D. LEXIS 110 (N.D. 1997).

District court did not commit error in failing to give an instruction on culpability, since culpability is a non-essential element of DUI because DUI is a strict liability offense. State v. Glass, 2000 ND 212, 620 N.W.2d 146, 2000 N.D. LEXIS 259 (N.D. 2000).

Under N.D.C.C. § 12.1-02-01 and subsection (1) of this section, the level of culpability for an offense is analyzed at the time a person engages in the conduct that constitutes an offense. State v. Jahner, 2003 ND 36, 657 N.W.2d 266, 2003 N.D. LEXIS 32 (N.D. 2003).

In a statutory rape prosecution, the culpability requirement of “willfully” did not apply to the element of the victim's age, under N.D.C.C. § 12.1-02-02(3)(a), because the crime was a strict liability crime, since lack of knowledge or mistake as to the victim’s age was not a defense, under N.D.C.C. § 12.1-20-01(1). State v. Vandermeer, 2014 ND 46, 843 N.W.2d 686, 2014 N.D. LEXIS 43 (N.D. 2014).

Because N.D.C.C. § 39-08-01.2(2) does not specify a culpability requirement, it is a strict liability offense, and the willful culpability requirement of N.D.C.C. § 12.1-02-02(2) does not apply. State v. Montplaisir, 2015 ND 237, 869 N.W.2d 435, 2015 N.D. LEXIS 242 (N.D. 2015).

Bankruptcy.

Where a Chapter 7 debtor pled guilty to being an accomplice to criminal mischief in violation of N.D.C.C. § 12.1-03-01 and § 12.1-21-05(1)(b), in connection with vandalism against property of a judgment creditor’s insured, the debtor was not collaterally estopped from seeking a discharge of the debt because the issue of willfulness as decided by the guilty plea was not identical to the issue of willfulness under 11 U.S.C.S. § 523(a)(6); the definition of “willfulness” under N.D.C.C. § 12.1-02-02(1)(e) included reckless conduct, whereas reckless conduct did not satisfy willfulness under 11 U.S.C.S. § 523(a)(6). Acuity v. Wieser (In re Wieser), 2007 Bankr. LEXIS 4493 (Bankr. D.N.D. Apr. 4, 2007).

Intentionally.

Although this section may be directly applicable only to offenses or crimes described in Title 12.1, it was an appropriate source to look to in determining the definition of “intent” in section 57-38-45(3). State v. Benson, 376 N.W.2d 36, 1985 N.D. LEXIS 460 (N.D. 1985).

Defendant’s conviction for attempted murder of a prosecutor was supported by the evidence because the jury heard evidence that defendant brought a loaded gun and three clips with 38 rounds of ammunition into a courtroom, stood in a “shooter’s stance” with two hands holding the gun pointed at the prosecutor’s chest, and intentionally, as defined in N.D.C.C. § 12.1-02-02(1)(a), pulled the trigger multiple times. State v. Chacano, 2013 ND 8, 826 N.W.2d 294, 2013 N.D. LEXIS 4 (N.D. 2013).

Jury Instructions.

District court correctly instructed the jury on the culpability required for criminal attempt and correctly advised the jury of the law because the jury instructions followed the wording of the criminal attempt statute and also defined “accomplice,” which mirrored the text of the accomplice statute. State v. Gunn, 2018 ND 95, 909 N.W.2d 701, 2018 N.D. LEXIS 101 (N.D.), cert. denied, — U.S. —, 139 S. Ct. 231, 202 L. Ed. 2d 128, 2018 U.S. LEXIS 5328 (U.S. 2018).

District court did not err when it instructed the jury on the elements of the crimes of gross sexual imposition because the jury was required to find defendant’s actions were willful, and the district court’s instructions correctly advised the jury on that element of the crimes; the charges also required a finding that defendant acted with a specific purpose and correctly instructed the jury on that element of the offense by providing the jury with the definition of sexual contact. State v. Gaddie, 2022 ND 44, 971 N.W.2d 811, 2022 N.D. LEXIS 49 (N.D. 2022).

Knowingly.

“Knowingly” does not require absolute knowledge, but merely a firm belief, unaccompanied by substantial doubt. State v. Kaufman, 310 N.W.2d 709, 1981 N.D. LEXIS 324 (N.D. 1981).

Evidence was sufficient to sustain a criminal trespass conviction where defendant admitted that he received the divorce decree, which awarded his ex-wife the parties’ home, the ex-wife testified that she informed defendant that he could not come to the house without her approval, and defendant admitted that he had been told not to come to the house without her approval. The ex-wife testified that she did not receive a phone call from defendant, but awoke and discovered him in her residence, and defendant admitted that he entered the house through the window. State v. Bertram, 2006 ND 10, 708 N.W.2d 913, 2006 N.D. LEXIS 6 (N.D. 2006).

Negligent Conduct.

It is not necessary to show that defendant realized her conduct would in all probability produce death in order to establish that death was negligently caused; negligent conduct requires only showing of an unreasonable disregard of a substantial likelihood of existence of relevant facts or risks. State v. Ohnstad, 359 N.W.2d 827, 1984 N.D. LEXIS 435 (N.D. 1984).

In a case involving leaving the scene of an accident involving death under N.D.C.C. § 39-08-04, a motion for an acquittal under N.D.R.Crim.P. 29 was properly denied because an argument that defendant was not aware he had hit someone did not apply the negligence culpability standard under N.D.C.C. § 12.1-02-02; based on the age of a truck and problems that it was having, defendant should have at least gotten out and checked after he felt a bump while backing out of a parking lot near a bar. A witnesses’ testimony regarding the amount of time defendant spent around his truck made the jury’s conclusion that defendant acted negligently by leaving the scene even more reasonable because it seemed more likely he would have known a drunk man was in the vicinity and could have been the source of the bump, even if he did not think the man was behind the truck when he backed up. State v. Jacob, 2006 ND 246, 724 N.W.2d 118, 2006 N.D. LEXIS 253 (N.D. 2006).

Recklessly.

When the police conducted a traffic stop after midnight during freezing temperatures, they directed the passenger to exit the vehicle and denied his request to sit in the squad car; he suffered frostbite. The evidence was sufficient to support the police officer’s conviction for reckless endangerment in violation of N.D.C.C. § 12.1-17-03; he did not challenge the jury’s findings that he acted recklessly within the meaning of N.D.C.C. § 12.1-02-02(1)(c). State v. O'Toole, 2009 ND 174, 773 N.W.2d 201, 2009 N.D. LEXIS 184 (N.D. 2009).

Sufficient Notice of Violation.

The language of N.D.C.C. § 12.1-16-03, when read together with the definition of “negligently,” is sufficiently explicit to enable a reasonable person to determine what type of conduct renders him liable under the statute. State v. Tranby, 437 N.W.2d 817, 1989 N.D. LEXIS 55 (N.D.), cert. denied, 493 U.S. 841, 110 S. Ct. 128, 107 L. Ed. 2d 88, 1989 U.S. LEXIS 4147 (U.S. 1989).

Willful Conduct.
—In General.

A person acts “‘Willfully’ if he engages in the conduct intentionally, knowingly, or recklessly.” Negligent conduct does not constitute willful conduct. State v. Anderson, 480 N.W.2d 727, 1992 N.D. LEXIS 29 (N.D. 1992).

It was reasonable for the jury to find defendant guilty of aggravated assault because the testimony that his wife felt as though she was going to pass out, along with a doctor’s testimony that her injuries were consistent with strangulation, constituted “serious bodily injury”; the testimony stating defendant intentionally put his wife in a choke hold satisfied the requirement that the conduct be “willful.” State v. Abdiwali Mohamud, 2019 ND 101, 925 N.W.2d 396, 2019 N.D. LEXIS 109 (N.D. 2019).

—Violation of Injunction.

There was sufficient evidence for the jury to find that the defendant was guilty of disobeying a lawful preliminary injunction where the defendant evidenced knowledge of the injunction by her initial lawful demonstration, by her response to a warning, and by her testimony, where there was ample evidence that the defendant was part of a group that demonstrated other than quietly and peacefully, and where there were evidentiary conflicts and factual questions about the defendant’s state of mind sufficient for the jury to infer a willfulness to violate the injunction. State v. Franck, 499 N.W.2d 108, 1993 N.D. LEXIS 73 (N.D. 1993).

DECISIONS UNDER PRIOR LAW

Corruptly.

Even though an information did not charge that the bribery was done “corruptly”, it did charge that the defendant did the acts “willfully, unlawfully, and feloniously” and this was the equivalent of an allegation that the money was given with corrupt intent. State v. La Flame, 30 N.D. 489, 152 N.W. 810, 1915 N.D. LEXIS 139 (N.D. 1915).

Culpable Negligence.

As applied to the operation of a motor vehicle, culpable negligence implied a total lack of care defined as driving in a reckless and heedless manner with utter disregard for the lives and limbs of persons upon the highway. State v. Gulke, 76 N.D. 653, 38 N.W.2d 722 (1949), decided prior to the enactment of this section and N.D.C.C. section 12.1-16-02.

Negligence.

An instruction defining the terms “negligence” and “negligently” in the exact language of the statute was sufficient where no more specific instruction was asked. Zilke v. Johnson, 22 N.D. 75, 132 N.W. 640, 1911 N.D. LEXIS 15 (N.D. 1911).

Willful Resistance.

A defendant could not be convicted of the willful resistance of a search warrant of which he had no notice or knowledge at the time the resistance was made. State ex rel. Register v. McGahey, 12 N.D. 535, 97 N.W. 865, 1904 N.D. LEXIS 1 (N.D. 1904).

Collateral References.

Intoxication: modern status of the rules as to voluntary intoxication as defense to criminal charge, 8 A.L.R.3d 1236.

Mental or emotional condition as diminishing responsibility for crime, 22 A.L.R.3d 1228.

Modern status of test of criminal responsibility—state cases, 9 A.L.R.4th 526.

Necessity and sufficiency of showing, in criminal prosecution under “hit and run” statute, accused’s knowledge of accident, injury, or damage, 26 A.L.R.5th 1.

Adequacy of defense counsel’s representation of criminal client — conduct occurring at time of trial regarding issues of diminished capacity, intoxication, and unconsciousness, 78 A.L.R.5th 197.

Adequacy of defense counsel’s representation of criminal client — pretrial conduct or conduct at unspecified time regarding issues of diminished capacity, intoxication, and unconsciousness, 79 A.L.R.5th 419.

Validity, Construction, and Application of State Statutes Imposing Criminal Penalties for Failure to Register as Required Under Sex Offender or Other Criminal Registration Statutes, 33 A.L.R.6th 91.

12.1-02-03. Mistake of fact in affirmative defenses.

Unless otherwise expressly provided, a mistaken belief that the facts which constitute an affirmative defense exist is not a defense.

Source: S.L. 1973, ch. 116, § 2.

12.1-02-04. Ignorance or mistake negating culpability. [Repealed]

Repealed by S.L. 1975, ch. 116, § 33.

12.1-02-05. Causal relationship between conduct and result.

Causation may be found where the result would not have occurred but for the conduct of the accused operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the accused clearly insufficient.

Source: S.L. 1973, ch. 116, § 2.

CHAPTER 12.1-03 Accomplices — Corporations — Agents

12.1-03-01. Accomplices.

  1. A person may be convicted of an offense based upon the conduct of another person when:
    1. Acting with the kind of culpability required for the offense, he causes the other to engage in such conduct;
    2. With intent that an offense be committed, he commands, induces, procures, or aids the other to commit it, or, having a statutory duty to prevent its commission, he fails to make proper effort to do so; or
    3. He is a coconspirator and his association with the offense meets the requirements of either of the other subdivisions of this subsection.
  2. Unless otherwise provided, in a prosecution in which the liability of the defendant is based upon the conduct of another person, it is no defense that:
    1. The defendant does not belong to the class of persons who, because of their official status or other capacity or characteristic, are by definition of the offense the only persons capable of directly committing it; or
    2. The person for whose conduct the defendant is being held liable has been acquitted, has not been prosecuted or convicted, has been convicted of a different offense, is immune from prosecution, or is otherwise not subject to justice.

A person is not liable under this subsection for the conduct of another person when he is either expressly or by implication made not accountable for such conduct by the statute defining the offense or related provisions because he is a victim of the offense or otherwise.

Source: S.L. 1973, ch. 116, § 3; 1975, ch. 116, § 4.

Cross-References.

Criminal conspiracy, see N.D.C.C. § 12.1-06-04.

Jurisdiction against principal when not present when offense committed, see N.D.C.C. § 29-03-19.

Jurisdiction of accessory in county where offense committed, see N.D.C.C. § 29-03-12.

Notes to Decisions

Constitutionality.

This section and the facilitation statute, N.D.C.C. § 12.1-06-02, are clear and unambiguous and do not have the same, or a virtually indistinguishable, burden of proof; therefore, this section does not violate the fourteenth amendment of the United States Constitution or Art. I, §§ 12 and 21 of the state constitution as prohibiting the same acts with a different penalty than that prohibited by the facilitation statute. State v. Ballard, 328 N.W.2d 251, 1982 N.D. LEXIS 395 (N.D. 1982).

Accomplice to Extreme Indifference Murder.

Rejection of defendant’s claim that accomplice to commit extreme indifference murder was not cognizable was summarily affirmed because this claim was previously rejected. Morris v. State, 2019 ND 166, 930 N.W.2d 195, 2019 N.D. LEXIS 179 (N.D. 2019).

Bankruptcy.

Where a Chapter 7 debtor pled guilty to being an accomplice to criminal mischief in violation of N.D.C.C. § 12.1-03-01 and § 12.1-21-05(1)(b), in connection with vandalism against property of a judgment creditor’s insured, the debtor was not collaterally estopped from seeking a discharge of the debt because the issue of willfulness as decided by the guilty plea was not identical to the issue of willfulness under 11 U.S.C.S. § 523(a)(6); the definition of “willfulness” under N.D.C.C. § 12.1-02-02(1)(e) included reckless conduct, whereas reckless conduct did not satisfy willfulness under 11 U.S.C.S. § 523(a)(6). Acuity v. Wieser (In re Wieser), 2007 Bankr. LEXIS 4493 (Bankr. D.N.D. Apr. 4, 2007).

Co-conspirator.

This section does not automatically make a co-conspirator an accomplice to a crime committed in furtherance of the conspiracy. State v. Lind, 322 N.W.2d 826, 1982 N.D. LEXIS 366 (N.D. 1982).

Construction with Other Laws.

Section 29-21-14 applies only in criminal cases, and “accomplice,” when used in a criminal context, is a term of art with a limited, specific meaning, the statutory definition of which is in subsection 1 of this section, which is used to gauge the need for corroboration of accomplice testimony. Section 29-21-14 requires corroboration of testimony only where the witness could be criminally responsible as an accomplice under subsection 1 of this section. State v. Pacheco, 506 N.W.2d 408, 1993 N.D. LEXIS 179 (N.D. 1993).

Rejection of defendant’s claim that accomplice to commit extreme indifference murder was not cognizable was summarily affirmed because this claim was previously rejected. Morris v. State, 2019 ND 166, 930 N.W.2d 195, 2019 N.D. LEXIS 179 (N.D. 2019).

Corroboration Requirement.

Where witness and defendant were the only eyewitnesses to murder and each claimed that the other, acting alone, killed the victim, it would have been very misleading to the jury had the court given the jury an instruction to the effect that testimony of an accomplice must be corroborated; even if it were assumed that the trial court erred in not giving such an instruction, the failure to give it under the facts of the case would have been harmless error. State v. Kelley, 450 N.W.2d 729, 1990 N.D. LEXIS 20 (N.D. 1990).

Evidence Sufficient.

Where all the material elements of the crime of accomplice to burglary were established by testimony of defendant’s accomplice, and his testimony was adequately corroborated by direct testimony of others and by the introduction of various physical evidence seized from vehicle pursuant to a search warrant, there was substantial evidence to support the jury’s verdict that defendant acted as an accomplice to burglary. State v. Haugen, 448 N.W.2d 191, 1989 N.D. LEXIS 215 (N.D. 1989).

Evidence, including that a second defendant induced a first defendant before the murders with accusation that the victims were abusing a child and with motives of visitation and a trust fund, was sufficient to convict the second defendant of two counts of accomplice to the murders under N.D.C.C. § 12.1-03-01(1)(b). State v. Sorenson, 2009 ND 147, 770 N.W.2d 701, 2009 N.D. LEXIS 150 (N.D. 2009).

Substantial evidence warranted defendant’s conviction for attempted gross sexual imposition because the State presented sufficient evidence of who the victim would be were the crime committed by her accomplice, who defendant communicated with on a social networking website; a detective testified that part of the conversation between defendant and the accomplice was role-playing, but the part in which defendant instructed the accomplice to sexually assault his daughter was not. State v. Gunn, 2018 ND 95, 909 N.W.2d 701, 2018 N.D. LEXIS 101 (N.D.), cert. denied, — U.S. —, 139 S. Ct. 231, 202 L. Ed. 2d 128, 2018 U.S. LEXIS 5328 (U.S. 2018).

Facilitation Statute Distinguished.

This section and the facilitation statute, N.D.C.C. § 12.1-06-02, provide for separate offenses; under this section, the giving of aid with intent that the offense be committed is the key element, whereas under the facilitation statute, N.D.C.C. § 12.1-06-02, knowingly providing assistance without intent to commit an offense to a person who intends to commit a felony and actually commits the crime contemplated is the key element. State v. Ballard, 328 N.W.2d 251, 1982 N.D. LEXIS 395 (N.D. 1982).

Failure to Provide Direct Evidence.

Where there was no direct evidence about when acquaintance learned that defendant’s license was suspended, or that acquaintance knew that defendant’s license was suspended when defendant drove the pickup borrowed from acquaintance, and there was also no direct evidence that acquaintance provided defendant with the keys to the pickup under circumstances indicating a common plan or demonstrating control over defendant, the court could not say, as a matter of law, that the acquaintance was an accomplice under subdivision (1)(b) of this section; therefore, acquaintance’s testimony did not need to be corroborated under N.D.C.C. § 29-21-14. State v. Deery, 489 N.W.2d 887, 1992 N.D. App. LEXIS 2 (N.D. Ct. App. 1992).

Lesser Included Offense of Facilitation.

Where the same evidence from which a juror could infer that the defendant aided another with intent that the other commit an offense (accomplice liability) could also allow a juror to infer that she only aided another with knowledge that the other intended to commit an offense (facilitation), there was evidence which could create a reasonable doubt as to accomplice liability and support a conviction of criminal facilitation, and the trial court’s refusal to give a lesser included offense instruction constituted prejudicial error. State v. Langan, 410 N.W.2d 149, 1987 N.D. LEXIS 368 (N.D. 1987).

Criminal facilitation is a lesser included offense to accomplice liability. State v. Langan, 410 N.W.2d 149, 1987 N.D. LEXIS 368 (N.D. 1987).

Mere Presence at Scene.

Evidence that defendant was present at the scene of the crime and did not attempt to prevent the crime was insufficient to establish the defendant as an accomplice where there was no evidence that defendant commanded, induced, procured, aided and abetted, or encouraged the commission of the crime. Zander v. K., 256 N.W.2d 713, 1977 N.D. LEXIS 163 (N.D. 1977).

Post-Conviction Relief.

In a case in which the district court denied appellant's application for postconviction relief, the district court's finding that appellant gave aid with intent a forgery be committed was not clearly erroneous. Saari v. State, 2017 ND 94, 893 N.W.2d 764, 2017 N.D. LEXIS 104 (N.D. 2017).

DECISIONS UNDER PRIOR LAW

Aiding and Abetting.

A verdict finding the defendant guilty of assault with a dangerous weapon was proper if it appeared that he aided and abetted accomplices who used dangerous weapons. State v. Rosencranz, 40 N.D. 93, 168 N.W. 650, 1918 N.D. LEXIS 77 (N.D. 1918).

Evidence that the defendant suggested a plan contemplating the larceny of an automobile was sufficient under the statute, and he was not exonerated because he did not advise the stealing of a particular car or in detail direct the execution of the scheme. State v. Smith, 51 N.D. 130, 199 N.W. 187, 1924 N.D. LEXIS 150 (N.D. 1924).

Where four defendants, charged with assault and battery, admitted they traveled together, arrived at scene of assault together, were present while fighting between them and occupants of house was going on, and acted in support of each other, none of them doing anything to stop fighting, there was ample evidence that all of defendants aided and abetted in commission of the battery, and conviction was affirmed. State v. Berger, 235 N.W.2d 254, 1975 N.D. LEXIS 142 (N.D. 1975), cert. denied, 425 U.S. 913, 96 S. Ct. 1511, 47 L. Ed. 2d 764, 1976 U.S. LEXIS 880 (U.S. 1976).

Possession.

In a prosecution for a larceny, where the defendant was held as the principal on the theory that he advised and encouraged the commission of the crime, an instruction that possession of property recently stolen, unless explained, was a circumstance tending to show guilt was proper. State v. Smith, 51 N.D. 130, 199 N.W. 187, 1924 N.D. LEXIS 150 (N.D. 1924).

Principal.

It was proper to charge as principal in a homicide one who counseled and directed the murder and the information could aver that defendant himself fired the fatal shot, which was in fact fired by the one he instigated to commit the crime. State v. Kent, 4 N.D. 577, 62 N.W. 631, 1895 N.D. LEXIS 51 (N.D. 1895).

Where there was no evidence proving that defendant was a principal in the crime of maintaining a common nuisance, it was prejudicial error to instruct the jury that they might convict the defendant upon the theory that he aided and abetted another in keeping and maintaining the nuisance. State v. Dahms, 29 N.D. 51, 149 N.W. 965, 1914 N.D. LEXIS 7 (N.D. 1914).

Collateral References.

Receiving stolen property: thief as accomplice of one charged with receiving stolen property, or vice versa, within rule requiring cautionary instruction, 53 A.L.R.2d 817.

“Hit-and-run” statute, criminal responsibility, as principal or accessory, of one, other than driver at time of accident, under, 62 A.L.R.2d 1130, 1131.

Incest: prosecutrix in incest case as accomplice or victim, 74 A.L.R.2d 705.

Children: criminal liability of person as aider and abettor, or other participant, for assault and similar offenses by excessive or improper punishment inflicted on child by parent, teacher, or one in loco parentis, 89 A.L.R.2d 396.

Manslaughter, who other than actor is liable for, 95 A.L.R.2d 175.

Right or duty to refuse telephone, telegraph, or other wire service in aid of illegal gambling operations, 30 A.L.R.3d 1143.

Abortion: woman upon whom abortion is committed or attempted as accomplice for purposes of rule requiring corroboration of accomplice testimony, 34 A.L.R.3d 858.

Drugs or narcotics, offense of aiding and abetting illegal possession of, 47 A.L.R.3d 1239.

What constitutes driving, operating, or being in control of motor vehicle for purposes of driving while intoxicated statutes, 93 A.L.R.3d 7.

Acquittal of principal, or his conviction of lesser degree of offense, as affecting prosecution of accessory, or aider and abettor, 9 A.L.R.4th 972.

Prosecution or conviction of one conspirator as affected by disposition of case against co-conspirators, 19 A.L.R.4th 192.

Criminality of act of directing to, or recommending, source from which illicit drugs may be purchased, 34 A.L.R.5th 125.

Law Reviews.

“A Comparison of Drinking and Driving Law in Norway and North Dakota: More Than a Difference in Penalties,” 76 N.D. L. Rev. 33 (2000).

12.1-03-02. Corporate and limited liability company criminal responsibility.

  1. A corporation or a limited liability company may be convicted of:
    1. Any offense committed by an agent of the corporation or limited liability company within the scope of the agent’s employment on the basis of conduct authorized, requested, or commanded, by any of the following or a combination of them:
      1. The board of directors or the board of governors.
      2. An executive officer, executive manager, or any other agent in a position of comparable authority with respect to the formulation of policy or the supervision in a managerial capacity of subordinate employees.
      3. Any person, whether or not an officer of the corporation, who controls the corporation or is responsibly involved in forming its policy.
      4. Any person, whether or not a manager of the limited liability company, who controls the limited liability company or is responsibly involved in forming its policy.
      5. Any other person for whose act or omission the statute defining the offense provides corporate or limited liability company responsibility for offenses.
    2. Any offense consisting of an omission to discharge a specific duty of affirmative conduct imposed on a corporation or a limited liability company by law.
    3. Any misdemeanor committed by an agent of the corporation or the limited liability company within the scope of the agent’s employment.
    4. Any offense for which an individual may be convicted without proof of culpability, committed by an agent of the corporation or the limited liability company within the scope of the agent’s employment.
  2. It is no defense that an individual upon whose conduct liability of the corporation or the limited liability company for an offense is based has been acquitted, has not been prosecuted or convicted, has been convicted of a different offense, is immune from prosecution, or is otherwise not subject to justice.

Source: S.L. 1973, ch. 116, § 3; 1993, ch. 54, § 71.

Cross-References.

Fines and special sanctions for organizations, see N.D.C.C. §§ 12.1-32-01.1, 12.1-32-03.

Notes to Decisions

Employee and Criminal Acts.

An employee is acting within the scope of her authority, for criminal law purposes, if: (1) the employee has authority to do the particular corporate business which was conducted criminally; (2) the employee was acting, at least in part, in furtherance of the corporation’s business interests; and (3) the corporate management has authorized, tolerated, or ratified the criminal acts. State v. Smokey's Steakhouse, 478 N.W.2d 361, 1991 N.D. LEXIS 228 (N.D. 1991).

DECISIONS UNDER PRIOR LAW

Action for Deceit.

A corporation was liable in an action at law for deceit to the same extent as was a natural person. Gunderson v. Havanna-Clyde Mining Co., 22 N.D. 329, 133 N.W. 554, 1911 N.D. LEXIS 49 (N.D. 1911).

Collateral References.

Dissolved corporation, maintainability of criminal proceedings against, 40 A.L.R.2d 1396.

Corporation’s criminal liability for homicide, 45 A.L.R.4th 1021.

12.1-03-03. Individual accountability for conduct on behalf of organizations.

  1. A person is legally accountable for any conduct he performs or causes to be performed in the name of an organization or in its behalf to the same extent as if the conduct were performed in his own name or his behalf.
  2. Except as otherwise expressly provided, whenever a duty to act is imposed upon an organization by a statute or regulation thereunder, any agent of the organization having primary responsibility for the subject matter of the duty is legally accountable for an omission to perform the required act to the same extent as if the duty were imposed directly upon himself.
  3. When an individual is convicted of an offense as an accomplice of an organization, he is subject to the sentence authorized when a natural person is convicted of that offense.

Source: S.L. 1973, ch. 116, § 3.

DECISIONS UNDER PRIOR LAW

Counterclaim.

Counterclaim alleging that third party, for himself and as agent, vandalized hay baler, stated claim against alleged principal. Remmick v. Mills, 165 N.W.2d 61, 1968 N.D. LEXIS 91 (N.D. 1968).

12.1-03-04. Definitions and general provisions.

  1. In this chapter:
    1. “Agent” means any partner, director, officer, governor, manager, servant, employee, or other person authorized to act in behalf of an organization.
    2. “Organization” means any legal entity, whether or not organized as a corporation, limited liability company, or unincorporated association, but does not include an entity organized as or by a governmental agency for the execution of a governmental program.
  2. Nothing in this chapter shall limit or extend the criminal liability of an unincorporated association.

Source: S.L. 1973, ch. 116, § 3; 1993, ch. 54, § 106.

CHAPTER 12.1-04 Juveniles — Intoxication — Defenses

12.1-04-01. Juveniles.

  1. An individual under the age of ten years is deemed incapable of commission of an offense defined by the constitution or statutes of this state. The prosecution of an individual as an adult is barred if the offense was committed while the individual was less than fourteen years of age.
  2. An individual ten years of age or older may be assessed for mental fitness or capacity under this chapter.

Source: S.L. 1973, ch. 116, § 4; 1981, ch. 328, § 2; 2019, ch. 105, § 1, effective August 1, 2019; 2019, ch. 256, § 1, effective August 1, 2019.

Cross-References.

Sentencing of minor convicted of felony, see N.D.C.C. § 12.1-32-13.

Uniform Juvenile Court Act, see N.D.C.C. ch. 27-20.

Notes to Decisions

Applicability.

Although there was evidence defendant was less than fourteen years old when the first alleged sexual acts or contacts occurred, evidence also existed that all essential elements of the offense were not present and complete and the offense was not committed until after defendant’s fourteenth birthday; defendant was only charged with one offense, continuous sexual abuse of a child, and he was not charged with separate offenses for each of the alleged sexual acts or contacts, and the offense of continuous sexual abuse of a child was not committed until defendant was more than fourteen years old, such that N.D.C.C. § 12.1-04-01 did not apply. State v. Vondal, 2011 ND 186, 803 N.W.2d 578, 2011 N.D. LEXIS 185 (N.D. 2011).

DECISIONS UNDER PRIOR LAW

Burden on State.

The state could overcome the presumption that a child between seven and fourteen was incapable of committing a crime, but it had to show by clear proof that the accused knew the wrongfulness of the act and the burden was upon the state to prove knowledge of the wrongfulness of the act as an independent fact. State v. Fisk, 15 N.D. 589, 108 N.W. 485, 1906 N.D. LEXIS 63 (N.D. 1906).

Rape.

Child under fourteen was presumed physically incapable of crime of rape, and physical ability to commit rape had to be proved as an independent fact. State v. Fisk, 15 N.D. 589, 108 N.W. 485, 1906 N.D. LEXIS 63 (N.D. 1906).

Waiver of Jurisdiction.

The legislature had the power to fix the age of criminal capacity or responsibility absolutely and the power to fix it conditionally and it also had the power to provide that when a child committed an offense against the laws of a state or the ordinances of a city, and thus became a ward of the juvenile court, the judge of the juvenile court could waive the jurisdiction of the juvenile court and permit the child to be proceeded against in accordance with the laws or ordinances governing such offense. State ex rel. Minot v. Gronna, 79 N.D. 673, 59 N.W.2d 514, 1953 N.D. LEXIS 72 (N.D. 1953).

Collateral References.

Inclusion or exclusion of day of birth in computing age, 5 A.L.R.2d 1143.

Burden of proof of defendant’s age in prosecution where attainment of particular age is statutory requisite of guilt, 49 A.L.R.3d 526.

12.1-04-02. Intoxication.

  1. Intoxication is not a defense to a criminal charge. Intoxication does not, in itself, constitute mental disease or defect within the meaning of section 12.1-04-04. Evidence of intoxication is admissible whenever it is relevant to negate or to establish an element of the offense charged.
  2. A person is reckless with respect to an element of an offense even though his disregard thereof is not conscious, if his not being conscious thereof is due to self-induced intoxication.

Source: S.L. 1973, ch. 116, § 4; 1977, ch. 120, § 1; 1985, ch. 173, § 27.

Notes to Decisions

Crime of General Intent.

Voluntary intoxication is not a defense to a crime of general intent. State v. Cummins, 347 N.W.2d 571, 1984 N.D. LEXIS 293 (N.D. 1984).

Instructions.

Trial court did not commit reversible error by combining language from former and present intoxication statutes in its instruction on the effect of intoxication on defendant’s capacity to form the requisite specific intent required by the charged offense where the changes in the statutes did not alter the substance of the law and the instruction as given fairly informed the jury of the current law. State v. Tipler, 316 N.W.2d 97, 1982 N.D. LEXIS 220 (N.D. 1982).

DECISIONS UNDER PRIOR LAW

Assault.

The crime of assault and battery with intent to kill was divisible into degrees and in a trial on the charge evidence of intoxication was admissible. People v. Odell, 46 N.W. 601, 1 Dakota 197, 1875 Dakota LEXIS 11 (Dakota 1875).

Degree of Intoxication.

It was not every degree of intoxication that could properly be considered by the jury, and great care had to be exercised in the introduction of this class of evidence so that it would not be considered as a defense, excuse, or justification, unless in case of a person who performed an act under such a state of intoxication as to be without volition, when he had lost control of his will, and was incapable of forming a purpose. People v. Odell, 46 N.W. 601, 1 Dakota 197, 1875 Dakota LEXIS 11 (Dakota 1875).

Larceny.

Larceny required the existence of the specific intent to deprive another of property to constitute the crime and intoxication of the defendant could be considered by the jury for the purpose of determining whether this intent actually existed. State v. Koerner, 8 N.D. 292, 78 N.W. 981, 1899 N.D. LEXIS 2 (N.D. 1899).

Purpose.

The purpose of the admission of evidence of intoxication was not to justify or excuse the crime, but to aid the jury in determining whether, in fact, the crime had been committed. State v. Koerner, 8 N.D. 292, 78 N.W. 981, 1899 N.D. LEXIS 2 (N.D. 1899).

Collateral References.

Modern status of the rules as to voluntary intoxication as defense to criminal charge, 8 A.L.R.3d 1236.

Effect of voluntary drug intoxication upon criminal responsibility, 73 A.L.R.3d 98.

Adequacy of defense counsel’s representation of criminal client — conduct occurring at time of trial regarding issues of diminished capacity, intoxication, and unconsciousness, 78 A.L.R.5th 197.

Adequacy of defense counsel’s representation of criminal client — pretrial conduct or conduct at unspecified time regarding issues of diminished capacity, intoxication, and unconsciousness, 79 A.L.R.5th 419.

12.1-04-03. Lack of criminal responsibility a defense. [Repealed]

Repealed by S.L. 1985, ch. 173, § 29.

12.1-04-04. Definitions.

As used in this chapter, unless the context otherwise requires:

  1. “Fitness to proceed” means sufficient present ability to consult with the individual’s counsel with a reasonable degree of rational understanding and a rational as well as factual understanding of the proceedings against the individual.
  2. “Least restrictive appropriate setting” means available treatment or service that best meets the identified need and is no more restrictive of physical or social liberties than what is necessary to meet the need.
  3. “Therapeutically appropriate treatment” means treatment that provides the individual the greatest probability of improvement or cure.

Source: S.L. 1973, ch. 116, § 4; 2021, ch. 104, § 1, effective August 1, 2021.

Notes to Decisions

Assisting in Own Defense.

The essence of the ability to consult with an attorney with a reasonable degree of rational understanding is that the defendant must be able to confer coherently with counsel and provide necessary and relevant information to formulate a defense. Where there was evidence that defendant had a “normal” or “mid average” I.Q. and a basic understanding of the legal process and the role of each of the participants in the proceedings, and there was conflicting evidence about whether he was able to communicate with counsel with a reasonable degree of rational understanding so as to assist his counsel in formulating a defense, since the trial court was in the best position to weigh that conflicting evidence, although defendant undoubtedly had some mental deficiencies, the trial court did not err in finding that defendant could effectively communicate with counsel to assist in his defense. State v. VanNatta, 506 N.W.2d 63, 1993 N.D. LEXIS 165 (N.D. 1993).

Burden of Proof.

The prosecution must show by a preponderance of evidence that a defendant is competent to stand trial, and the trial court’s determination on the issue of competency to stand trial is reviewed under the “clearly erroneous” standard. State v. VanNatta, 506 N.W.2d 63, 1993 N.D. LEXIS 165 (N.D. 1993).

Defendant did not carry defendant’s burden of proof to show that defendant was entitled to relief on defendant’s application for postconviction relief. Defendant did not do so because defendant did not introduce sufficient evidence to support defendant’s claims that defendant was not competent, as contemplated by N.D.C.C. § 12.1-04-04, to enter a guilty plea to two criminal charges or that defendant received ineffective assistance of counsel in entering that plea, and the trial court’s finding that defendant did not adequately support either postconviction claim was not clearly erroneous under N.D.R.Civ.P. 52(a). Alman Andrew Wong v. State, 2011 ND 201, 804 N.W.2d 382, 2011 N.D. LEXIS 199 (N.D. 2011).

Competent to Stand Trial.

Defendant, who was convicted of two counts of terrorizing, was not denied due process of law during his trial, even though the trial court did not order a second evaluation and order a competency hearing on its own motion, where two experts agreed that defendant was competent to stand trial, although they also warned that defendant would be difficult to work with, which the record reflected he was. State v. Roberson, 2002 ND 24, 639 N.W.2d 690, 2002 N.D. LEXIS 17 (N.D. 2002).

In a case in which defendant pled guilty to gross sexual imposition, burglary, aggravated assault, and terrorizing, the district court did not commit obvious error by failing to determine whether defendant was competent to proceed because the examiner filed a report containing findings that defendant was competent to proceed and that there was no reason to believe defendant lacked the capacity to understand the proceedings against him or to assist in his defense; defendant did not object to the report or otherwise contest the examiner’s findings; and no clear statutory provisions or case law required the district court to make a determination about defendant’s competency under those circumstances. State v. Grant, 2018 ND 175, 915 N.W.2d 639, 2018 N.D. LEXIS 192 (N.D. 2018).

Incompetent to Stand Trial.

A defendant is incompetent to stand trial when he neither has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding, nor a rational as well as factual understanding of the proceedings against him. State v. Heger, 326 N.W.2d 855, 1982 N.D. LEXIS 374 (N.D. 1982); State v. VanNatta, 506 N.W.2d 63, 1993 N.D. LEXIS 165 (N.D. 1993).

Even though defendant presented surprise testimony at trial, failed to understand his defense, testified in the form of a long narrative and alternatively complained of and praised his attorney, these facts and circumstances were not enough to create sufficient doubt in the court’s mind regarding the defendant’s competency to stand trial. Thus, defendant was not denied due process when trial court failed to hold an evidentiary hearing on his competency to stand trial. State v. Gleeson, 2000 ND 205, 619 N.W.2d 858, 2000 N.D. LEXIS 250 (N.D. 2000).

Question of Fact.

Whether a defendant is mentally competent to stand trial is a question of fact for the trial judge. State v. Skjonsby, 417 N.W.2d 818, 1987 N.D. LEXIS 449 (N.D. 1987).

12.1-04-04.1. Disposition of defendants — Lack of fitness to proceed — Records.

  1. A defendant is presumed to be fit to stand trial, to plead, or to be sentenced.
  2. An individual who lacks fitness to proceed may not be tried, convicted, or sentenced for the commission of an offense.
  3. Any report filed pursuant to this chapter regarding “diagnosis, treatment, or treatment plans” must be kept confidential and may be reviewed only by the court or an appellate court, the state, the defense, the facility providing treatment as required by order of the court, and any other person as directed by the court.

Source: S.L. 2021, ch. 104, § 2, effective August 1, 2021.

12.1-04-05. Notice of defense, filing.

Superseded by N.D.R.Crim.P., Rule 12.2.

12.1-04-06. Temporary detention for purposes of examination.

Whenever there is reason to doubt the defendant’s fitness to proceed, the court may order temporary detention of the defendant for the purpose of an examination. The temporary detention must be in the least restrictive appropriate setting, including the state hospital, the life skills and transition center, or other suitable facility for a reasonable period, not to exceed thirty days, for such examination. In lieu of detention, the court may allow the defendant to remain in the defendant’s present residential setting or other suitable residential setting for the purpose of examination, subject to any reasonable limitation the court may impose. A human service center may be considered if the court is aware an inquiry was made before the court ordered the evaluation to ensure appropriate resources exist at the human service center being ordered to conduct the examination. While the defendant is detained, the defendant’s legal counsel, family, and others necessary to assist in the defendant’s case must have reasonable opportunity to examine and confer with the defendant.

Source: S.L. 1973, ch. 116, § 4; 1985, ch. 173, § 28; 1991, ch. 121, § 1; 1995, ch. 34, § 10; 2013, ch. 102, § 1; 2013, ch. 226, § 1; 2017, ch. 97, § 3, effective August 1, 2017; 2021, ch. 104, § 3, effective August 1, 2021.

Notes to Decisions

Competency to Plead.

Where the only allegation of defendant’s mental incapacity was a reference by his attorney at the sentencing hearing 25 days after entry of his plea to a childhood injury which may have caused some brain damage, and the trial judge had ample opportunity to observe the defendant’s courtroom demeanor, test his understanding of the charge against him, and refer to a presentence report of his educational, marital and criminal history, there was no “reason to doubt” defendant’s competency to plead guilty, and no hearing on that issue was required. State v. Storbakken, 246 N.W.2d 78, 1976 N.D. LEXIS 145 (N.D. 1976).

Collateral References.

Validity and construction of statutes providing for psychiatric examination of accused to determine mental condition, 32 A.L.R.2d 434, 444.

Right of accused in criminal prosecution to presence of counsel at court-appointed or approved psychiatric examination, 3 A.L.R.4th 910.

12.1-04-07. Examination — Report — Hearing when contested.

  1. Whenever there is reason to doubt the defendant’s fitness to proceed, the court shall order the defendant be examined by a tier 1a mental health professional.
  2. An examination must occur within fifteen days from notice of entry of the order served upon the tier 1a mental health professional. Attorneys shall disclose any materials necessary to examine the fitness of the individual to the tier 1a examiner contemporaneously with the order. For good cause shown, the court may grant an extension allowing an additional seven days to complete the examination.
  3. The report of the examining mental health professional, whether for a retrospective evaluation of fitness or an evaluation of the defendant’s current fitness, must be provided to the court in writing within thirty days of the date of the examination.
  4. The report must include:
    1. The identity of the individuals interviewed and records and other information considered.
    2. Procedures, tests, and techniques utilized in the assessment.
    3. The date and time of the examination of the defendant, and the identity of each individual present during the examination.
    4. The relevant information obtained, other information not obtained, and the defendant’s responses to questions related to the defendant’s fitness to proceed, except for any restricted, proprietary, copyrighted, or other information subject to trade secret protection which the examiner believes may be relevant, and the findings made.
    5. An opinion as to whether the defendant is fit to proceed, is able to understand the nature or purpose of the proceedings against the defendant, is able to effectively communicate with counsel, and whether the defendant will attain fitness to proceed within the time frames set forth in section 12.1-04-08. If the examiner is unable to determine whether the defendant will attain fitness within a specified period of time, the report must include the reasoning. The report may include a general description of the type of treatment needed and of the therapeutically appropriate treatment or other appropriate treatment.
  5. If the findings of the report are contested, the court shall hold a hearing before deciding whether the defendant currently lacks fitness to proceed and whether the defendant will attain fitness to proceed. Upon hearing, the prosecution and defense have the right to summon and cross-examine the persons responsible for the report and to offer evidence upon the issues.

Source: S.L. 1973, ch. 116, § 4; 1991, ch. 121, § 2; 2013, ch. 225, § 1; 2021, ch. 104, § 4, effective August 1, 2021.

Notes to Decisions

Competency to Stand Trial.

Defendant is initially presumed competent to stand trial until the trial court has reason to doubt defendant’s competency; once a defendant has caused the trial court to doubt his competency to proceed, the state has the burden to prove by a preponderance of the evidence that defendant is competent to stand trial. State v. Heger, 326 N.W.2d 855, 1982 N.D. LEXIS 374 (N.D. 1982).

In a case in which defendant pled guilty to gross sexual imposition, burglary, aggravated assault, and terrorizing, the district court did not commit obvious error by failing to determine whether defendant was competent to proceed because the examiner filed a report containing findings that defendant was competent to proceed and that there was no reason to believe defendant lacked the capacity to understand the proceedings against him or to assist in his defense; defendant did not object to the report or otherwise contest the examiner’s findings; and no clear statutory provisions or case law required the district court to make a determination about defendant’s competency under those circumstances. State v. Grant, 2018 ND 175, 915 N.W.2d 639, 2018 N.D. LEXIS 192 (N.D. 2018).

Defendant’s constitutional public trial guarantee by the trial court’s closure of the courtroom during defendant’s competency hearing was violated because the right attached to a pretrial competency hearing and the trial court did not apply the Waller factors. Even though defendant requested the closure he articulated no overriding interest and the trial court did not tailor the closure to any overriding interest likely to be prejudiced, nor did it consider alternatives to closure. State v. Rogers, 2018 ND 244, 919 N.W.2d 193, 2018 N.D. LEXIS 252 (N.D. 2018).

Evidence.

Evidence regarding a defendant’s competency to stand trial may be presented in the form of lay observations and expert medical testimony. State v. Heger, 326 N.W.2d 855, 1982 N.D. LEXIS 374 (N.D. 1982).

In determining defendant’s competency to stand trial, it is appropriate for the trial judge to personally conduct an informal examination of the defendant and then to rely, in part, on his own impressions, observations and conclusions in making his decision. State v. Heger, 326 N.W.2d 855, 1982 N.D. LEXIS 374 (N.D. 1982).

Trial court’s determination that mentally retarded defendant was competent to stand trial was not clearly erroneous where, despite defendant’s mental condition, there was evidence that he could understand the legal concepts and proceedings against him if they were explained, to him in very basic, simple language at the vocabulary level of a six-year-old child, and that his understanding would be sufficient to enable him to assist counsel in his defense. State v. Heger, 326 N.W.2d 855, 1982 N.D. LEXIS 374 (N.D. 1982).

Review on Appeal.

Supreme court adopted the “clearly erroneous” standard of review to be used in reviewing on appeal a trial court’s determination concerning defendant’s competency to stand trial. State v. Heger, 326 N.W.2d 855, 1982 N.D. LEXIS 374 (N.D. 1982).

Collateral References.

Admissibility on issue of sanity of expert opinion based partly on medical, psychological, or hospital reports, 55 A.L.R.3d 551.

Qualification of nonmedical psychologist to testify as to mental condition or competency, 72 A.L.R.5th 529.

12.1-04-08. Suspension or dismissal of proceedings — Referral for services.

  1. If the court determines based upon a preponderance of the evidence that the defendant currently lacks fitness to proceed and the report as required under section 12.1-04-07 indicates a likelihood the defendant will attain fitness within a specified period of time from the date of the finding upon completion of a course of therapeutically appropriate treatment, the proceedings against the defendant must be suspended. For a defendant charged with a felony, the proceedings must be suspended for a period of up to one hundred eighty days. The court may extend the suspension for an additional three hundred sixty-five days if there is medical evidence to believe the defendant’s fitness to proceed will be restored during the extended period. For a defendant charged with a misdemeanor, the proceedings must be suspended for a period no longer than the maximum term of imprisonment for the most serious offense charged. When the court determines, after a hearing if a hearing is requested, that the defendant has regained fitness to proceed, the proceeding must be resumed. If prosecution of the defendant has not resumed or it is determined by the court, after a hearing if a hearing is requested, that the defendant will not regain fitness to proceed within the allotted time, the charges against the defendant must be dismissed.
  2. If the court determines based upon a preponderance of the evidence that the defendant currently lacks fitness to proceed and that the defendant will not attain fitness to proceed, the proceedings must be dismissed. The court may at any time make a referral for other appropriate services. Other appropriate services include:
    1. Determination of incapacity, by a district court with appropriate jurisdiction following petition by the state’s attorney, for the appointment of a guardian or conservator pursuant to chapter 30.1-28 or 30.1-29; or
    2. Civil commitment of the person pursuant to chapter 25-03.1.
  3. If the court determines the defendant currently lacks fitness to proceed and the defendant may attain fitness to proceed under subsection 1, the court may enter an order for a course of treatment considering the least restrictive form of treatment therapeutically appropriate.
    1. Unless excused by the court, in a proceeding to determine therapy in an attempt to attain fitness, the defendant shall be represented by trial counsel.
    2. If the court finds the individual is not able to retain the services of a tier 1a mental health professional and that those services are not otherwise available, the court shall authorize reasonable expenditures from public funds to examine the individual.
    3. In a motion hearing to resume prosecution, the state or prosecuting authority must show by a preponderance of the evidence the defendant has attained fitness to proceed.
  4. If the court orders the defendant committed to a treatment facility in an attempt to attain fitness to proceed under subsection 1, the court shall provide the special custody and commitment terms in the order. The special terms of commitment must include an order for the defendant to accept all nonexperimental, generally accepted medical, psychiatric, or psychological treatment recommended by the treatment facility, including the use of involuntary treatment with prescribed medication without the need for a separate commitment under chapter 25-03.1.
    1. If the order does not indicate the terms of commitment, the director or superintendent of the treatment facility may determine the nature of the constraints necessary within the treatment facility to carry out the order of the court.
    2. If the court orders an individual committed for therapeutic treatment to attain fitness to proceed, the court shall set a date consistent with the timeline established in this section for a review of the defendant’s fitness to proceed. At least sixty days before the date specified for review, the director or director’s designee or the superintendent of the treatment facility shall inquire as to whether the individual is represented by counsel and file a written report of the facts ascertained with the court.
  5. If the parties to the action have reason to modify the special terms of the commitment order under this section, the parties shall make a motion to the court and the court shall determine by a preponderance of the evidence if the modification of the special terms is necessary and the least restrictive therapeutic alternative therapy in an attempt to attain fitness to proceed.
  6. The custodian, guardian, or other person charged with the control of the defendant may take an appeal from the court’s order in the manner provided by law.

Source: S.L. 1973, ch. 116, § 4; 1991, ch. 121, § 3; 1995, ch. 34, § 10; 2013, ch. 226, § 1; 2021, ch. 104, § 5, effective August 1, 2021.

Note.

S.L. 2013, chapter 226, § 1, codified as N.D.C.C. § 25-04-01.1, provides for the substitution of “life skills and transition center” for “developmental center at westwood park, Grafton” or “developmental center” or any derivatives of those terms wherever they appear in the North Dakota Century Code.

Notes to Decisions

Due Process.

Where district court retained jurisdiction over petitioner’s placement in state hospital as provided for by subsection (2), supreme court would not consider collateral attack on court order alleging violation of petitioner’s due process rights, based on opinion of assistant attorney general that involuntary commitment proceeding should be conducted. Rutten v. R. A. (In the Interest of R. A.), 551 N.W.2d 800, 1996 N.D. LEXIS 192 (N.D. 1996).

District court did not clearly err in finding that defendant was not competent to assist in his defense and suspending the prosecution against him as the report filed by an independent examiner, in conjunction with the testimony and evidence presented at two hearings and the district court’s own observations, provided evidence to support its findings that defendant was not competent to stand trial because of his schizophrenia, paranoid type, and delusions as well as his emotional outbursts and instability during hearings. State v. Holbach, 2014 ND 14, 842 N.W.2d 328, 2014 N.D. LEXIS 16 (N.D.), cert. denied, 574 U.S. 984, 135 S. Ct. 462, 190 L. Ed. 2d 347, 2014 U.S. LEXIS 7253 (U.S. 2014).

Because defendant had a right to a speedy trial and was presumed innocent, his continued pretrial detention at the State Hospital had to be determined under the statutory procedures and safeguards of N.D.C.C. ch. 25-03.1. State v. Holbach, 2014 ND 14, 842 N.W.2d 328, 2014 N.D. LEXIS 16 (N.D.), cert. denied, 574 U.S. 984, 135 S. Ct. 462, 190 L. Ed. 2d 347, 2014 U.S. LEXIS 7253 (U.S. 2014).

Collateral References.

Release of one committed to institution as consequence of acquittal of crime on ground of insanity, 95 A.L.R.2d 54.

Appealability of orders or rulings, prior to final judgment in criminal case, as to accused’s mental competency, 16 A.L.R.3d 714.

12.1-04-09. Legal objections to prosecution allowed.

The fact that the defendant is unfit to proceed does not preclude any legal objection to the prosecution which is susceptible of fair determination prior to trial and without the personal participation of the defendant.

Source: S.L. 1973, ch. 116, § 4.

12.1-04-10. Acquittal due to mental disease or defect — Petition to clerk of court. [Repealed]

Repealed by S.L. 1985, ch. 173, § 29.

CHAPTER 12.1-04.1 Criminal Responsibility and Post-trial Responsibility Act

12.1-04.1-01. Standard for lack of criminal responsibility.

  1. An individual is not criminally responsible for criminal conduct if, as a result of mental disease or defect existing at the time the conduct occurs:
    1. The individual lacks substantial capacity to comprehend the harmful nature or consequences of the conduct, or the conduct is the result of a loss or serious distortion of the individual’s capacity to recognize reality; and
    2. It is an essential element of the crime charged that the individual act willfully.
  2. For purposes of this chapter, repeated criminal or similar antisocial conduct, or impairment of mental condition caused primarily by voluntary use of alcoholic beverages or controlled substances immediately before or contemporaneously with the alleged offense, does not constitute in itself mental illness or defect at the time of the alleged offense. Evidence of the conduct or impairment may be probative in conjunction with other evidence to establish mental illness or defect.

Source: S.L. 1985, ch. 173, § 1.

Cross-References.

Defense based on mental condition, see N.D.R.Crim.P. 12.2.

Notes to Decisions

Civil and Criminal Candidates Compared.

For discussion on the differences between the class of potential civil commitment candidates and the class of insanity detainees after a criminal trial, including their different standards of proof, see State v. Nording, 485 N.W.2d 781, 1992 N.D. LEXIS 103 (N.D. 1992).

Constitutional Considerations.

Defendant’s equal protection rights under the federal and state constitutions were not infringed when he was detained and committed for treatment after the jury found that he engaged in criminal conduct but was not guilty “by reason of lack of criminal responsibility.” State v. Nording, 485 N.W.2d 781, 1992 N.D. LEXIS 103 (N.D. 1992).

Forced Medication.

The very specific protections afforded by N.D.C.C. § 25-03.1-18.1 are applicable to all persons committed for treatment. There is no language under this chapter that manifests a legislative intent to avoid application of N.D.C.C. § 25-03.1-18.1 to persons who have been committed for treatment under this chapter. State v. Nording, 485 N.W.2d 781, 1992 N.D. LEXIS 103 (N.D. 1992).

Section 25-03.1-18.1 applies to insanity detainees who are committed to treatment facilities under this chapter. The court has authority to commit and order treatment under this chapter, but, when the treatment is to include forced medication, the procedural requirements of N.D.C.C. § 25-03.1-18.1 must be met. State v. Nording, 485 N.W.2d 781, 1992 N.D. LEXIS 103 (N.D. 1992).

Inquiry Requirement.

In order to determine whether or not a defendant has competently, intelligently, and voluntarily waived the defense of lack of criminal responsibility, the trial court must make some type of inquiry of the defendant. City of Bismarck v. Nassif, 449 N.W.2d 789, 1989 N.D. LEXIS 249 (N.D. 1989).

As to the type of inquiry which should be made by the trial court to determine whether a defendant has competently, intelligently, and voluntarily waived the defense of lack of criminal responsibility, see City of Bismarck v. Nassif, 449 N.W.2d 789, 1989 N.D. LEXIS 249 (N.D. 1989).

Jury Instructions.

A jury instruction on consequences of a verdict of not guilty by reason of a lack of criminal responsibility ordinarily should not be given, except where an erroneous view of law on subject has been planted in minds of jurors and a curative instruction is necessary. State v. Huber, 361 N.W.2d 236, 1985 N.D. LEXIS 244 (N.D.), cert. denied, 471 U.S. 1106, 105 S. Ct. 2339, 85 L. Ed. 2d 855, 1985 U.S. LEXIS 1867 (U.S. 1985).

Pretrial Dismissal.

Defense based on lack of criminal responsibility is not proper subject of a pretrial motion to dismiss because defense has a bearing on very issue of a defendant’s legal guilt or innocence and, as such, raises a factual question to be submitted to and determined by trier of fact. State v. Kolobakken, 347 N.W.2d 569, 1984 N.D. LEXIS 294 (N.D. 1984).

Probation Violation.

Insanity under this section is not a defense in a proceeding to revoke probation under N.D.R.Crim.P. 32(f). State v. Olson, 2003 ND 23, 656 N.W.2d 650, 2003 N.D. LEXIS 26 (N.D. 2003).

Purpose.

This chapter seeks to protect society from persons who commit violent crimes and who suffer from mental illness or defect. This chapter also seeks to secure appropriate treatment for those individuals and to release them from involuntary commitment when neither society’s protection nor their welfare requires continued confinement. State v. Nording, 485 N.W.2d 781, 1992 N.D. LEXIS 103 (N.D. 1992).

Sufficiency of Evidence.

The jury could have chosen not to believe expert testimony that defendant was profoundly psychotic and suffering from delirium tremens at the time of the murder, and the evidence that defendant moved the body, washed the blood from him and changed clothes and concealed those details from the expert was sufficient to support the finding of guilt. State v. Klose, 2003 ND 39, 657 N.W.2d 276, 2003 N.D. LEXIS 31 (N.D. 2003).

DECISIONS UNDER PRIOR LAW

Jury Instructions.

The defense of insanity was a legal defense, and hence it would not be disparaged, or placed under the ban of disapproval by the court in an instruction to the jury. State v. Barry, 11 N.D. 428, 92 N.W. 809, 1902 N.D. LEXIS 153 (N.D. 1902).

Collateral References.

Presumption of continuing insanity as applied to accused in criminal case, 27 A.L.R.2d 121.

Bail: insanity of accused as affecting right to bail in criminal case, 11 A.L.R.3d 1385.

Modern status of rules as to burden and sufficiency of proof of mental irresponsibility in criminal case, 17 A.L.R.3d 146.

Diminishing responsibility for crime, mental or emotional condition as, 22 A.L.R.3d 1228.

Comment note on prosecution of chronic alcoholic for drunkenness offenses, 40 A.L.R.3d 321.

XYY syndrome as affecting criminal responsibility, 42 A.L.R.3d 1414.

Amnesia as affecting capacity to commit crime or stand trial, 46 A.L.R.3d 544.

Drug addiction or related mental state as defense to criminal charge, 73 A.L.R.3d 16.

Necessity or propriety of bifurcated criminal trial on issue of insanity defense, 1 A.L.R.4th 884.

Modern status of test of criminal responsibility—state cases, 9 A.L.R.4th 526.

Competency to stand trial of criminal defendant diagnosed as “mentally retarded” — modern cases, 23 A.L.R.4th 493.

Automatism or unconsciousness as defense to criminal charge, 27 A.L.R.4th 1067.

“Guilty but mentally ill” statutes: validity and construction, 71 A.L.R.4th 702.

Instructions in state criminal case in which defendant pleads insanity as to hospital confinement in event of acquittal, 81 A.L.R.4th 659.

Adequacy of defense counsel’s representation of criminal client — issues of incompetency, 70 A.L.R.5th 1.

Adequacy of defense counsel’s representation of criminal client — pretrial conduct or conduct at unspecified time regarding issues of insanity, 72 A.L.R.5th 109.

Law Reviews.

Criminal Law — Capacity to Commit and Responsibility for Crime — Validity of the XYY Syndrome as Part of the Defense of Insanity, 52 N.D. L. Rev. 685 (1976).

12.1-04.1-02. Court authorization of state-funded mental health services for certain defendants.

A defendant who is unable to pay for the services of a tier 1a mental health professional, and to whom those services are not otherwise available, may apply to the court for assistance. Upon a showing of a likely need for examination on the question of lack of criminal responsibility or lack of requisite state of mind as a result of the defendant’s mental condition, the court shall authorize reasonable expenditures from public funds for the defendant’s retention of the services of one or more tier 1a mental health professionals. Upon request by the defendant, the application and the proceedings on the application must be ex parte and in camera, but any order under this section authorizing expenditures must be made part of the public record.

Source: S.L. 1985, ch. 173, § 2; 2017, ch. 97, § 4, effective August 1, 2017.

Notes to Decisions

Public Trial.

Defendant’s constitutional public trial guarantee by the trial court’s closure of the courtroom during defendant’s competency hearing was violated because the right attached to a pretrial competency hearing and the trial court did not apply the Waller factors. Even though defendant requested the closure he articulated no overriding interest and the trial court did not tailor the closure to any overriding interest likely to be prejudiced, nor did it consider alternatives to closure. State v. Rogers, 2018 ND 244, 919 N.W.2d 193, 2018 N.D. LEXIS 252 (N.D. 2018).

Scope of Examination.

Court-appointed psychiatric evaluation which went beyond the scope of determining the defendant’s competency to stand trial and concluded the defendant was a pedophile with “sexual pre-occupation” did not violate the defendant’s Fifth and Six Amendment rights since the State did not use the evaluation at any point during the criminal proceeding. State v. Syvertson, 1999 ND 137, 597 N.W.2d 644, 1999 N.D. LEXIS 157 (N.D.), cert. denied, 528 U.S. 956, 120 S. Ct. 383, 145 L. Ed. 2d 299, 1999 U.S. LEXIS 7008 (U.S. 1999).

Second Evaluation.

The trial court’s denial of defendant’s request for a second psychiatric evaluation deprived him of neither his constitutional nor statutory right to publicly funded mental health services. State v. Norman, 507 N.W.2d 522, 1993 N.D. LEXIS 191 (N.D. 1993).

Where the court-appointed psychiatric evaluation went beyond the scope of determining the defendant’s competency to stand trial and concluded the defendant was a pedophile with “sexual pre-occupation” but the State did not use the evaluation at any point during the criminal proceeding, the defendant was not entitled to a second evaluation. State v. Syvertson, 1999 ND 137, 597 N.W.2d 644, 1999 N.D. LEXIS 157 (N.D.), cert. denied, 528 U.S. 956, 120 S. Ct. 383, 145 L. Ed. 2d 299, 1999 U.S. LEXIS 7008 (U.S. 1999).

12.1-04.1-03. Notice of defense of lack of criminal responsibility.

  1. If the defendant intends to assert the defense of lack of criminal responsibility, the defendant shall notify the prosecuting attorney in writing and file a copy of the notice with the court. The notice must indicate whether the defendant intends to introduce at trial evidence obtained from examination of the defendant by a tier 1a mental health professional after the time of the alleged offense.
  2. The defendant shall file the notice within the time prescribed for pretrial motions or at such earlier or later time as the court directs. For cause shown, the court may allow late filing of the notice and grant additional time to the parties to prepare for trial or may make other appropriate orders.
  3. If the defendant fails to give notice in accordance with this section, lack of criminal responsibility may not be asserted as a defense.

Source: S.L. 1985, ch. 173, § 3; 2017, ch. 97, § 5, effective August 1, 2017.

12.1-04.1-04. Notice regarding expert testimony on lack of state of mind as element of alleged offense.

  1. If the defendant intends to introduce at trial evidence obtained from examination of the defendant by a tier 1a mental health professional after the time of the alleged offense to show the defendant lacked the state of mind required for the alleged offense, the defendant shall notify the prosecuting attorney in writing and file a copy of the notice with the court.
  2. The defendant shall file the notice within the time prescribed for pretrial motions or at such earlier or later time as the court directs. For cause shown, the court may allow late filing of the notice and grant additional time to the parties to prepare for trial or may make other appropriate orders.

Source: S.L. 1985, ch. 173, § 4; 2017, ch. 97, § 6, effective August 1, 2017.

Cross-References.

Expert witnesses and interpreters, see N.D.R.Crim.P. 28.

Notice of defense based on mental condition, see N.D.R.Crim.P. 12.2.

12.1-04.1-05. Examination at request of prosecuting attorney.

  1. If the defendant has given notice under section 12.1-04.1-03 or 12.1-04.1-04 of intent to introduce evidence obtained from examination of the defendant by a tier 1a mental health professional after the time of the alleged offense, the court, upon application by the prosecuting attorney and after opportunity for response by the defendant, shall order the defendant be examined by one or more tier 1a mental health professionals retained by the prosecuting attorney. The court shall include in the order provisions as to the time, place, and conditions of the examination.
  2. If the parties agree to examination of the defendant by a tier 1a mental health professional retained by the prosecuting attorney without order of the court, sections 12.1-04.1-06, 12.1-04.1-07, 12.1-04.1-08, 12.1-04.1-10, 12.1-04.1-11, 12.1-04.1-12, 12.1-04.1-13, 12.1-04.1-14, and 12.1-04.1-15 apply to that examination.

Source: S.L. 1985, ch. 173, § 5; 2017, ch. 97, § 7, effective August 1, 2017.

12.1-04.1-06. Explanation to defendant.

At the beginning of each examination conducted under section 12.1-04.1-05, the tier 1a mental health professional shall inform the defendant the examination is being made at the request of the prosecuting attorney; the purpose of the examination is to obtain information about the defendant’s mental condition at the time of the alleged offense; and information obtained from the examination may be used at trial and, if the defendant is found not guilty by reason of lack of criminal responsibility, in subsequent proceedings concerning commitment or other disposition.

Source: S.L. 1985, ch. 173, § 6; 2017, ch. 97, § 8, effective August 1, 2017.

12.1-04.1-07. Scope of examination.

An examination of the defendant conducted under section 12.1-04.1-05 may consist of such interviewing, clinical evaluation, and psychological testing the tier 1a mental health professional considers appropriate, within the limits of nonexperimental, generally accepted medical, psychiatric, or psychological practices.

Source: S.L. 1985, ch. 173, § 7; 2017, ch. 97, § 9, effective August 1, 2017.

12.1-04.1-08. Recording of examination.

  1. An examination of the defendant conducted under section 12.1-04.1-05 must be audio-recorded and, if ordered by the court, video-recorded. The manner of recording may be specified by rule or by court order in individual cases.
  2. Within seven days after completion of an examination conducted under section 12.1-04.1-05, the tier 1a mental health professional conducting the examination shall deliver a copy of the recording of the examination, under seal, to the court and a copy of the recording to the defendant. The recording may not be disclosed except in accordance with this chapter.

Source: S.L. 1985, ch. 173, § 8; 2017, ch. 97, § 10, effective August 1, 2017.

Notes to Decisions

Video-Recording.

Although the court-ordered interviews with defendant should have been videotaped as required by N.D.C.C. § 12.1-04.1-08(1), the State gave ample notice upon learning video-recording capacity was not available and defendant waived his right to object by failing to object. State v. Schmidkunz, 2006 ND 192, 721 N.W.2d 387, 2006 N.D. LEXIS 195 (N.D. 2006).

12.1-04.1-09. Consequence of deliberate failure of defendant to cooperate.

If the defendant without just cause deliberately fails to participate or to respond to questions in an examination conducted under section 12.1-04.1-05, the prosecuting attorney may apply before trial to the court for appropriate relief. The court may consider the recording of the examination as evidence on the application, but proceedings under this section involving consideration of the recording must be in camera and out of the presence of counsel.

Source: S.L. 1985, ch. 173, § 9.

12.1-04.1-10. Reports by tier 1a mental health professionals and expert witnesses.

A tier 1a mental health professional retained by the prosecuting attorney and a tier 1a mental health professional whom the defendant intends to call to testify at trial shall prepare a written report concerning any examination of the defendant and other pretrial inquiry by or under the supervision of the tier 1a mental health professional. Any other individual whom either party intends to call at trial as an expert witness on any aspect of the defendant’s mental condition shall prepare a written report. A report under this section must contain:

  1. The specific issues addressed.
  2. The identity of individuals interviewed and records or other information used.
  3. The procedures, tests, and techniques used.
  4. The date and time of examination of the defendant, the explanation concerning the examination given to the defendant, and the identity of each individual present during an examination.
  5. The relevant information obtained and findings made.
  6. Matters concerning which the mental health professional was unable to obtain relevant information and the reasons therefor.
  7. The conclusions reached and the reasoning on which the conclusions were based.

Source: S.L. 1985, ch. 173, § 10; 2017, ch. 97, § 11, effective August 1, 2017.

Collateral References.

Qualification of nonmedical psychologist to testify as to mental condition or competency, 72 A.L.R.5th 529.

12.1-04.1-11. Exchange of reports and production of documents.

Not less than fifteen days before trial, the prosecuting attorney shall furnish to the defendant reports prepared pursuant to section 12.1-04.1-10, and the defendant shall furnish to the prosecuting attorney reports by each tier 1a mental health professional or other expert on any aspect of the defendant’s mental condition whom the defendant intends to call at trial. Upon application by either party and after hearing, the court may require production of documents prepared, completed, or used in the examination or inquiry by the tier 1a mental health professional or other expert.

Source: S.L. 1985, ch. 173, § 11; 2017, ch. 97, § 12, effective August 1, 2017.

12.1-04.1-12. Use of reports at trial.

Use at trial of a report prepared by a tier 1a mental health professional or other expert is governed by the North Dakota Rules of Evidence. A report of a tier 1a mental health professional or other expert furnished by the defendant pursuant to section 12.1-04.1-10 may not be used at trial unless the tier 1a mental health professional or other expert who prepared the report has been called to testify by the defendant.

Source: S.L. 1985, ch. 173, § 12; 2017, ch. 97, § 13, effective August 1, 2017.

Collateral References.

Admissibility of results of computer analysis of defendant’s mental state, 37 A.L.R.4th 510.

12.1-04.1-13. Notice of expert witnesses.

Not less than twenty days before trial, each party shall give written notice to the other of the name and qualifications of each tier 1a mental health professional or other individual the respective party intends to call as an expert witness at trial on the issue of lack of criminal responsibility or requisite state of mind as an element of the crime charged. For good cause shown, the court may permit later addition to or deletion from the list of individuals designated as expert witnesses.

Source: S.L. 1985, ch. 173, § 13; 2017, ch. 97, § 14, effective August 1, 2017.

12.1-04.1-14. Use of evidence obtained from examination.

  1. Except as provided in subsection 2 and in sections 12.1-04.1-09 and 12.1-04.1-26, information obtained as a result of examination of a defendant by a tier 1a mental health professional conducted under section 12.1-04.1-05 is not admissible over objection of the defendant in any proceeding against the defendant.
  2. Subject to the limitation in section 12.1-04.1-15, information obtained from an examination of the defendant by a tier 1a mental health professional conducted under section 12.1-04.1-05 is admissible at trial to rebut evidence introduced by the defendant obtained from an examination of the defendant by a tier 1a mental health professional or to impeach the defendant on the defendant’s testimony as to mental condition at the time of the alleged offense.

Source: S.L. 1985, ch. 173, § 14; 2017, ch. 97, § 15, effective August 1, 2017.

Collateral References.

Admissibility of results of computer analysis of defendant’s mental state, 37 A.L.R.4th 510.

12.1-04.1-15. Use of recording of examination.

Except as provided in section 12.1-04.1-09, recording of an examination of the defendant concerning the defendant’s mental condition at the time of the alleged offense may be referred to or otherwise used only on cross-examination for the purpose of impeachment of the tier 1a mental health professional who conducted the examination and then on redirect examination of that witness to the extent permitted by the North Dakota Rules of Evidence. The defendant must make the recording available to the prosecuting attorney before any use of it pursuant to this section. If the recording is so used, this section does not preclude its use for the purpose of impeachment of the defendant in any other criminal, civil, or administrative proceeding.

Source: S.L. 1985, ch. 173, § 15; 2017, ch. 97, § 16, effective August 1, 2017.

12.1-04.1-16. Bifurcation of issue of lack of criminal responsibility.

Upon application of the defendant, the court may order that issues as to the commission of the alleged offense be tried separately from the issue of lack of criminal responsibility.

Source: S.L. 1985, ch. 173, § 16.

Notes to Decisions

Failure to Request Bifurcation.

District court did not err in denying appellant’s application for post-conviction relief, because he failed to prove that trial counsel rendered ineffective assistance by failing to request a bifurcated trial under N.D.C.C. § 12.1-04.1-16 on the issue of commission of the alleged offenses of reckless endangerment and attempted murder, and a separate trial for the lack of criminal responsibility by reason of mental disease or defect. Appellant did not have the right to have a separate trial on the issue of lack of criminal responsibility; rather, bifurcation is allowed in the trial court’s discretion. Dahl v. State, 2013 ND 25, 826 N.W.2d 922, 2013 N.D. LEXIS 26 (N.D.), cert. denied, 571 U.S. 848, 134 S. Ct. 112, 187 L. Ed. 2d 81, 2013 U.S. LEXIS 6321 (U.S. 2013).

12.1-04.1-17. Jury instruction on disposition following verdict of lack of criminal responsibility.

On request of the defendant in a trial by jury of the issue of lack of criminal responsibility for the alleged offense, the court shall instruct the jury as to the dispositional provisions applicable to the defendant if the jury returns a verdict of not guilty by reason of lack of criminal responsibility.

Source: S.L. 1985, ch. 173, § 17.

12.1-04.1-18. Form of verdict or finding.

If the issue of lack of criminal responsibility is submitted to the trier of fact:

  1. In a unitary trial, the trier of fact must first determine whether the prosecuting attorney has proven that the defendant committed the crime charged. In a bifurcated trial, the trier of fact must first determine whether the prosecuting attorney has proven that the defendant committed the crime charged and, if so, whether the defendant is criminally responsible. Each determination must be made at the conclusion of the phase of the trial at which the respective issue is tried. If the trier of fact concludes that the prosecuting attorney failed to prove that the defendant committed the crime charged, the appropriate verdict or finding is “not guilty”.
  2. If the trier of fact determines that the defendant committed the crime charged and the defendant was criminally responsible for that crime, the appropriate verdict or finding is “guilty”.
  3. If the trier of fact determines that the defendant committed the crime charged, but was not criminally responsible for that crime, the appropriate verdict or finding is a statement that the defendant committed the crime charged but that the defendant is “not guilty by reason of lack of criminal responsibility”.

Source: S.L. 1985, ch. 173, § 18.

Collateral References.

Propriety of transferring patient found not guilty by reason of insanity to less restrictive confinement, 43 A.L.R.5th 777.

12.1-04.1-19. Post-trial motions and appeal from verdict or finding of not guilty by reason of lack of criminal responsibility.

  1. A defendant found not guilty by reason of lack of criminal responsibility may seek post-trial relief in the trial court and may appeal to the supreme court on issues pertaining to the verdict or finding that the defendant committed the crime charged.
  2. If the verdict or finding is not guilty by reason of lack of criminal responsibility, and a new trial is ordered on the issue of whether the defendant committed the crime charged, unless defendant elects to waive the defense, the verdict or finding of lack of criminal responsibility is conclusive on that issue in the retrial.

Source: S.L. 1985, ch. 173, § 19.

12.1-04.1-20. Jurisdiction of court.

  1. Unless earlier discharged by order of the court pursuant to section 12.1-04.1-22, 12.1-04.1-24, or 12.1-04.1-25, an individual found not guilty by reason of lack of criminal responsibility is subject to the jurisdiction of the court for a period equal to the maximum term of imprisonment that could have been imposed for the most serious crime of which the individual was charged but found not guilty by reason of lack of criminal responsibility.
  2. Upon expiration of its jurisdiction under this chapter or earlier discharge by its order, the court may order that a proceeding for involuntary commitment be initiated pursuant to chapter 25-03.1.

Source: S.L. 1985, ch. 173, § 20.

Collateral References.

Validity of statutory provision for commitment to mental institution of one acquitted of crime on ground of insanity without formal determination of mental condition at time of acquittal, 50 A.L.R.3d 144.

Validity of conditions imposed when releasing person committed to institution as consequence of acquittal of crime on ground of insanity, 2 A.L.R.4th 934.

12.1-04.1-21. Proceeding following verdict or finding.

After entry of a verdict, finding, or an unresisted plea, that an individual committed the crime charged, but is not guilty by reason of lack of criminal responsibility, the court shall:

  1. Make a finding, based upon the verdict or finding provided in section 12.1-04.1-18, of the expiration date of the court’s jurisdiction; and
  2. Order the individual committed to a treatment facility, as defined under chapter 25-03.1, for examination. The order of the court may set terms of custody during the period of examination.

Source: S.L. 1985, ch. 173, § 21.

12.1-04.1-22. Initial order of disposition — Commitment to treatment facility — Conditional release — Discharge.

  1. The court shall conduct a dispositional hearing within ninety days after an order of commitment pursuant to section 12.1-04.1-21 is entered, unless the court, upon application of the prosecuting attorney or the individual committed, for cause shown, extends the time for the hearing. The court shall enter an initial order of disposition within ten days after the hearing is concluded.
  2. In a proceeding under this section, unless excused by order of the court, defense counsel at the trial shall represent the individual committed.
  3. If the court finds the individual lacks sufficient financial resources to retain the services of a tier 1a mental health professional and that those services are not otherwise available, the court shall authorize reasonable expenditures from public funds for the individual’s retention of the services of one or more tier 1a mental health professionals to examine the individual and make other inquiry concerning the individual’s mental condition.
  4. In a proceeding under this section, the individual committed has the burden of proof by a preponderance of the evidence. The court shall enter an order in accordance with the following requirements:
    1. If the court finds the individual is not mentally ill or defective or that there is not a substantial risk, as a result of mental illness or defect, that the individual will commit a criminal act, the court shall order the individual discharged from further constraint under this chapter.
    2. If the court finds the individual is mentally ill or defective and there is a substantial risk, as a result of mental illness or defect, that the individual will commit a criminal act of violence threatening another individual with bodily injury or inflicting property damage and that the individual is not a proper subject for conditional release, the court shall order the individual committed to a treatment facility for custody and treatment. If the court finds the risk the individual will commit an act of violence threatening another individual with bodily injury or inflicting property damage will be controlled adequately with supervision and treatment if the individual is conditionally released and that necessary supervision and treatment are available, the court shall order the individual released subject to conditions it considers appropriate for the protection of society.
    3. If the court finds the individual is mentally ill or defective and there is a substantial risk, as a result of mental illness or defect, that the individual will commit a criminal act not included in subdivision b, the court shall order the individual to report to a treatment facility for noncustodial evaluation and treatment and to accept nonexperimental, generally accepted medical, psychiatric, or psychological treatment recommended by the treatment facility.

Source: S.L. 1985, ch. 173, § 22; 2017, ch. 97, § 17, effective August 1, 2017.

Notes to Decisions

Involuntary Commitment.

Following a dispositional hearing, the court can involuntarily commit the detainee for custody and treatment only if the court finds that the detainee is mentally ill or defective, that there is a substantial risk that the detainee will commit a criminal act of violence, and that the detainee is not a proper subject for conditional release. State v. Nording, 485 N.W.2d 781, 1992 N.D. LEXIS 103 (N.D. 1992).

12.1-04.1-23. Terms of commitment — Periodic review of commitment.

  1. Unless an order of commitment of an individual to a treatment facility provides for special terms as to custody during commitment, the director or superintendent of the treatment facility may determine from time to time the nature of the constraints necessary within the treatment facility to carry out the court’s order. In an order of commitment, the court may authorize the director or superintendent to allow the individual a limited leave of absence from the treatment facility on terms the court may direct.
  2. In an order of commitment of an individual to a treatment facility under this chapter, the court shall set a date for review of the status of the individual. The date set must be within one year after the date of the order.
  3. At least sixty days before a date for review fixed in a court order, the director or superintendent of the treatment facility shall inquire as to whether the individual is presently represented by counsel and file with the court a written report of the facts ascertained. If the individual is not represented by counsel, counsel must be provided at public expense to consult with the individual and, if the individual is indigent, to seek arrangement of counsel at public expense to represent the individual in a proceeding for conditional release or discharge.
  4. If the court finds in a review the individual lacks sufficient financial resources to retain the services of a tier 1a mental health professional and those services are otherwise not available, the court shall authorize reasonable expenditures from public funds for the individual’s retention of the services of one or more tier 1a mental health professionals to examine the individual and make other inquiry concerning the individual’s mental condition. In proceedings brought before the next date for review, the court may authorize expenditures from public funds for that purpose.
  5. If an application for review of the status of the individual has not been filed by the date for review, the director or superintendent shall file a motion for a new date for review to be set by the court. The date set must be within one year after the previous date for review.

Source: S.L. 1985, ch. 173, § 23; 2007, ch. 119, § 1; 2017, ch. 97, § 18, effective August 1, 2017.

Notes to Decisions

Review of Status.

The detainee is entitled to another review of status within one year after the date of the court’s order. State v. Nording, 485 N.W.2d 781, 1992 N.D. LEXIS 103 (N.D. 1992).

Collateral References.

Extended Commitment of One Committed to Institution as Consequence of Acquittal of Crime on Ground of Insanity. 52 A.L.R.6th 567.

12.1-04.1-24. Modification of order of commitment — Conditional release or discharge — Release plan.

  1. After commitment of an individual to a treatment facility under this chapter, the director or superintendent may apply to the court for modification of the terms of an order of commitment or for an order of conditional release or discharge. The application must be accompanied by a report setting forth the facts supporting the application and, if the application is for conditional release, a plan for supervision and treatment of the individual.
  2. An individual who has been committed to a treatment facility under this chapter, or another person acting on the individual’s behalf, may apply to the court for modification of the terms of a commitment order or for an order of conditional release or discharge. If the application is being considered by the court at the time of the review of the order of commitment, the court shall require a report from the director or superintendent of the treatment facility.
  3. The court shall consider and dispose of an application under this section promptly. In a proceeding under this section, the applicant has the burden of proof by a preponderance of the evidence. The court shall enter an order in accordance with the following requirements:
    1. If the court finds that the individual committed is not mentally ill or defective or that there is not a substantial risk that the individual will commit, as a result of mental illness or defect, a criminal act, it shall order the individual discharged from further constraint under this chapter.
    2. If the court finds that the individual is mentally ill or defective, but that there is not a substantial risk that the individual will commit, as a result of mental illness or defect, a criminal act of violence threatening another individual with bodily injury or inflicting property damage, it shall vacate the order committing the individual to a treatment facility. If the court finds that there is a substantial risk that the individual will commit, as a result of mental illness or defect, a nonviolent criminal act, it may order the individual to report to any treatment facility for noncustodial evaluation and treatment and to accept nonexperimental, generally accepted medical, psychiatric, or psychological treatment recommended by the treatment facility.
    3. If the court finds that the individual is mentally ill or defective, but that the risk that the individual will commit, as a result of mental illness or defect, a criminal act of violence threatening another individual with bodily injury or inflicting property damage will be controlled adequately with supervision and treatment and that necessary supervision and treatment are available, it shall order the individual released subject to conditions it considers appropriate for the protection of society.
  4. In any proceeding for modification of an order of commitment to a treatment facility, if the individual has been represented by counsel and the application for modification of the order of commitment is denied after a plenary hearing, the court shall set a new date for periodic review of the status of the individual. The date set must be within one year after the date of the order.

Source: S.L. 1985, ch. 173, § 24.

Notes to Decisions

Modification of Terms.

The detainee may apply to the court for modification of the terms of the commitment order or for an order of conditional release or discharge, and the court must consider and dispose of that application “promptly.” State v. Nording, 485 N.W.2d 781, 1992 N.D. LEXIS 103 (N.D. 1992).

Collateral References.

Extended Commitment of One Committed to Institution as Consequence of Acquittal of Crime on Ground of Insanity. 52 A.L.R.6th 567.

12.1-04.1-25. Conditional release — Modification — Revocation — Discharge.

  1. In an order for conditional release of an individual, the court shall designate a treatment facility or a person to be responsible for supervision of the individual.
  2. As a condition of release, the court may require the individual released to report to any treatment facility for evaluation and treatment, require the individual to accept nonexperimental, generally accepted medical, psychiatric, or psychological treatment recommended by the treatment facility, and impose other conditions reasonably necessary for protection of society.
  3. The person or the director or superintendent of a treatment facility responsible for supervision of an individual released shall furnish reports to the court, at intervals prescribed by the court, concerning the mental condition of the individual. Copies of reports submitted to the court must be furnished to the individual and to the prosecuting attorney.
  4. If there is reasonable cause to believe that the individual released presents an imminent threat to cause bodily injury to another, the person or the director or superintendent of the treatment facility responsible for supervision of the individual pursuant to an order of conditional release may take the individual into custody or request that the individual be taken into custody. An individual taken into custody under this subsection must be accorded an emergency hearing before the court not later than the next court day to determine whether the individual should be retained in custody pending a further order pursuant to subsection 5.
  5. Upon application by an individual conditionally released, by the director or superintendent of the treatment facility or person responsible for supervision of an individual pursuant to an order of conditional release, or by the prosecuting attorney, the court shall determine whether to continue, modify, or terminate the order. The court shall consider and dispose of an application promptly. In a proceeding under this section, the applicant has the burden of proof by a preponderance of the evidence. The court shall enter an order in accordance with the following requirements:
    1. If the court finds that the individual is not mentally ill or defective or that there is not a substantial risk that the individual will commit, as a result of mental illness or defect, a criminal act, it shall order that the individual be discharged from further constraint under this chapter.
    2. If the court finds that the individual is mentally ill or defective, but that there is not a substantial risk that the individual will commit, as a result of mental illness or defect, a criminal act of violence threatening another individual with bodily injury or inflicting property damage, it may modify the conditions of release as appropriate for the protection of society.
    3. If the court finds that the individual is mentally ill or defective and that there is a substantial risk that the individual will commit, as a result of mental illness or defect, a criminal act of violence threatening another individual with bodily injury or inflicting property damage and that the individual is no longer a proper subject for conditional release, it shall order the individual committed to a treatment facility for custody and treatment. If the court finds that the individual is mentally ill or defective and that there is a substantial risk that the individual, as a result of mental illness or defect, will commit a nonviolent criminal act, it may order the individual to report to any treatment facility for noncustodial evaluation and treatment and to accept nonexperimental, generally accepted medical, psychiatric, or psychological treatment recommended by the treatment facility.

Source: S.L. 1985, ch. 173, § 25.

Collateral References.

Extended Commitment of One Committed to Institution as Consequence of Acquittal of Crime on Ground of Insanity. 52 A.L.R.6th 567.

Notes to Decisions

Construction.

Under N.D.C.C. § 12.1-04.1-25(5)(a), if the district court found there was not a substantial risk the individual would commit a crime as the result of mental illness, the individual had to be discharged. State v. Davis, 2016 ND 145, 882 N.W.2d 281, 2016 N.D. LEXIS 152 (N.D. 2016).

Plain language in N.D.C.C. § 12.1-04.1-25(5)(b) that it may modify the conditions of release as appropriate for the protection of society afforded the district court discretion to consider the circumstances and all relevant factors in determining whether to modify its order for conditional release. State v. Davis, 2016 ND 145, 882 N.W.2d 281, 2016 N.D. LEXIS 152 (N.D. 2016).

N.D.C.C. §§ 12.1-04.1-22, 12.1-04.1-24, and 12.1-04.1-25 require the discharge of an individual if the court finds the individual is not mentally ill or defective or that there is not a substantial risk, as a result of a mental illness or defect, that the individual will commit a criminal act. N.D.C.C. §§ 12.1-04.1-22(4)(a), 12.1-04.1-24(3)(a), 12.1-04.1-25(5)(a). All three sections also contemplate an individual committed may pose various levels of risk to society and grants the district court discretion to order the individual to varying levels of care, from commitment at a treatment facility, to supervision and treatment, or to treatment without supervision, depending on the risks found. N.D.C.C. §§ 12.1-04.1-22(4)(b)-(c), 12.1-04.1-24(3)(b)-(c), 12.1-04.1-25(5)(b)-(c). State v. Davis, 2016 ND 145, 882 N.W.2d 281, 2016 N.D. LEXIS 152 (N.D. 2016).

Discharge Denied.

District court did not err in finding that petitioner failed to prove by a preponderance of the evidence that he was entitled to discharge under N.D.C.C. § 12.1-04.1-25(5)(a) where it identified multiple examples of uncertainty pertaining to the risks associated with his mental illness. State v. Davis, 2016 ND 145, 882 N.W.2d 281, 2016 N.D. LEXIS 152 (N.D. 2016).

12.1-04.1-26. Procedures.

  1. An applicant for a court order under sections 12.1-04.1-20 through 12.1-04.1-25 shall deliver a copy of the application and any accompanying documents to the individual committed, the prosecuting attorney, the director or superintendent of the treatment facility to which the individual has been committed, or the person or the director or superintendent of a treatment facility responsible for supervision of an individual conditionally released. The North Dakota Rules of Civil Procedure, adapted by the court to the circumstances of a postverdict proceeding, apply to a proceeding under sections 12.1-04.1-20 through 12.1-04.1-25.
  2. In a proceeding under sections 12.1-04.1-20 through 12.1-04.1-25 for an initial order of disposition, in a proceeding for modification or termination of an order of commitment to a treatment facility initiated by the individual at the time of a review, or in a proceeding in which the status of the individual might be adversely affected, the individual has a right to counsel. If the court finds that the individual is indigent and that counsel is not otherwise available, counsel must be provided at public expense to represent the individual.
  3. In a proceeding under sections 12.1-04.1-20 through 12.1-04.1-25, the North Dakota Rules of Evidence do not apply. If relevant, evidence adduced in the criminal trial of the individual and information obtained by court-ordered examinations of the individual pursuant to section 12.1-04.1-04 or 12.1-04.1-22 are admissible.
  4. A final order of the court is appealable to the supreme court.

Source: S.L. 1985, ch. 173, § 26; 2007, ch. 119, § 2.

CHAPTER 12.1-05 Justification — Excuse — Affirmative Defenses

12.1-05-01. Justification.

  1. Except as otherwise expressly provided, justification or excuse under this chapter is a defense.
  2. If a person is justified or excused in using force against another, but he recklessly or negligently injures or creates a risk of injury to other persons, the justifications afforded by this chapter are unavailable in a prosecution for such recklessness or negligence.
  3. That conduct may be justified or excused within the meaning of this chapter does not abolish or impair any remedy for such conduct which is available in any civil action.

Source: S.L. 1973, ch. 116, § 5.

Notes to Decisions

In General.

This section provides that any justification or excuse in this chapter, 12.1-05, is a defense, and that a person who is otherwise justified or excused in using force against another is not justified in doing so if he is prosecuted for recklessness or negligence and he recklessly or negligently injures or creates a risk of injury to other persons. State v. Hass, 268 N.W.2d 456, 1978 N.D. LEXIS 253 (N.D. 1978).

Justification can be a defense in a criminal prosecution. State v. Sahr, 470 N.W.2d 185, 1991 N.D. LEXIS 83 (N.D. 1991).

Abortion and Trespass.

The defense of necessity cannot be utilized when the harm sought to be avoided, abortion, remains a constitutionally protected activity and the harm incurred, trespass, is in violation of the law. State v. Sahr, 470 N.W.2d 185, 1991 N.D. LEXIS 83 (N.D. 1991).

Adoption of New Federal Criminal Code.

This chapter is an almost complete adoption of Ch. 6 of the Proposed [New Federal Criminal] Code dealing with defenses involving justification and excuse. State v. Sahr, 470 N.W.2d 185, 1991 N.D. LEXIS 83 (N.D. 1991).

Inapplicability of Claim of Necessity.

A claim of necessity cannot be used to justify a crime that simply interferes with another person’s right to lawful activity. State v. Sahr, 470 N.W.2d 185, 1991 N.D. LEXIS 83 (N.D. 1991).

No Individualized Conception of Necessity.

While the history of the legislative development of justification defenses in our state shows that this chapter “is not intended to preclude the judicial development of other justifications,” it is clear that our criminal code does not license the judicial extension of justification to any individualized conception of “necessity.” State v. Sahr, 470 N.W.2d 185, 1991 N.D. LEXIS 83 (N.D. 1991).

Prosecution for Recklessness.

Prosecution for “terrorizing” as defined by N.D.C.C. § 12.1-17-04 was a prosecution for recklessness, because N.D.C.C. § 12.1-17-04 does not specify the degree of culpability required and, therefore, the degree required is “willfully” under N.D.C.C. § 12.1-02-02, subsection (2), and because “willfully” includes “recklessly” under N.D.C.C. § 12.1-02-02, subsection (1)(e). State v. Hass, 268 N.W.2d 456, 1978 N.D. LEXIS 253 (N.D. 1978).

Collateral References.

Consent as defense to charge of criminal assault and battery, 58 A.L.R.3d 662.

Burden of proof on defense that killing was accidental, 63 A.L.R.3d 936.

Law Reviews.

Summary of North Dakota Supreme Court Decisions on Criminal Law — Driving Under Suspension, 71 N.D. L. Rev. 841 (1995).

12.1-05-02. Execution of public duty.

  1. Conduct engaged in by a public servant in the course of the person’s official duties is justified when it is required or authorized by law.
  2. A person who has been directed by a public servant to assist that public servant is justified in using force to carry out the public servant’s direction, unless the action directed by the public servant is plainly unlawful.
  3. A person is justified in using force upon another to effect that person’s arrest or prevent that person’s escape when a public servant authorized to make the arrest or prevent the escape is not available if the other person has committed, in the presence of the actor, any crime which the actor is justified in using force to prevent, or if the other person has committed a felony involving force or violence.
  4. Conduct engaged in by an individual at the direction of a public servant, known by that individual to be a law enforcement officer, to assist in the investigation of a criminal offense is justified unless the individual knows or has a firm belief, unaccompanied by substantial doubt, that the conduct is not within the law enforcement officer’s official duties or authority. For purposes of this subsection, conduct “not within the law enforcement officer’s official duties or authority” is conduct in which the law enforcement officer alone could not lawfully engage in that officer’s official capacity. When practicable, permission must be obtained from a parent or guardian of a minor who is under the age of eighteen years and is neither married nor in the military service of the United States before the minor may engage in conduct, other than the providing of information, to assist in a criminal investigation under the direct supervision of a public servant.
  5. A member of the armed forces is justified in using deadly force when it reasonably appears to be necessary to prevent the loss, theft, destruction, sabotage, or unauthorized control of a nuclear weapon, critical nuclear component, or nuclear explosive device.

Source: S.L. 1973, ch. 116, § 5; 2001, ch. 130, § 1; 2021, ch. 105, § 1, effective March 24, 2021.

Notes to Decisions

Alcoholic Beverage Law Compliance Checks.

Although N.D.C.C. § 5-01-08 prohibits persons under 21 years of age from purchasing alcohol, attempting to purchase alcohol, and entering premises where alcoholic beverages are sold, law enforcement officials do not violate the law when conducting compliance checks because N.D.C.C. § 12.1-05-02(4) gives law enforcement officials the authority to use persons under 21 years of age for this purpose. City of Bismarck v. DePriest, 2006 ND 158, 717 N.W.2d 924, 2006 N.D. LEXIS 166 (N.D. 2006).

Collateral References.

Felony arrest: private person’s authority, in making arrest for felony, to shoot or kill alleged felon, 32 A.L.R.3d 1078.

12.1-05-03. Self-defense.

A person is justified in using force upon another person to defend himself against danger of imminent unlawful bodily injury, sexual assault, or detention by such other person, except that:

  1. A person is not justified in using force for the purpose of resisting arrest, execution of process, or other performance of duty by a public servant under color of law, but excessive force may be resisted.
  2. A person is not justified in using force if:
    1. He intentionally provokes unlawful action by another person to cause bodily injury or death to such other person; or
    2. He has entered into a mutual combat with another person or is the initial aggressor unless he is resisting force which is clearly excessive in the circumstances. A person’s use of defensive force after he withdraws from an encounter and indicates to the other person that he has done so is justified if the latter nevertheless continues or menaces unlawful action.

Source: S.L. 1973, ch. 116, § 5.

Notes to Decisions

Applicability.

This section applies to conduct, and is not limited to specified offenses; thus if a person is justified in engaging in specific conduct that would otherwise constitute disorderly conduct, self-defense is a defense. State v. Schumaier, 1999 ND 239, 603 N.W.2d 882, 1999 N.D. LEXIS 256 (N.D. 1999).

Where Defendant was convicted of injuring a highway, a trial court did not err in denying defendant’s instruction on the defense of excuse because the justifications found in N.D.C.C. §§ 12.1-05-03 and 12.1-05-06 and the definition of “force” in N.D.C.C. ch. 12.1-05 contemplated taking action against another person, rather than against property. State v. Zajac, 2009 ND 119, 767 N.W.2d 825, 2009 N.D. LEXIS 133 (N.D. 2009).

Evidence.

The trial court erred in ruling that defendant’s proffered testimony of deceased’s statement, that the victim contemplated arming himself and coming after the defendant, was hearsay; such evidence was not offered to prove the truth of the matter but to show the defendant’s state of mind. State v. Hart, 1997 ND 188, 569 N.W.2d 451, 1997 N.D. LEXIS 229 (N.D. 1997).

District court erred in excluding evidence about threatening statements the victim allegedly made to defendant, and the error was not harmless because the exclusion of the evidence harmed defendant’s ability to present his defense and affected his substantial rights; defendant alleged he was acting in self-defense, and evidence about his state of mind was relevant and material to his defense State v. Samshal, 2013 ND 188, 838 N.W.2d 463, 2013 N.D. LEXIS 192 (N.D. 2013).

“Excessive Force” as a Defense.

Resistance to “excessive force” by an officer acting under color of law is a factual defense to any criminal charge arising from the resistance. State v. Ritter, 472 N.W.2d 444, 1991 N.D. LEXIS 121 (N.D. 1991).

Court implicitly rejected defendant’s assertion that his resistance to arrest was justified by excessive force under N.D.C.C. § 12.1-05-03(1) where the court properly considered whether excessive force was used as a question of fact and by finding defendant guilty of preventing arrest or discharge of other duties, in violation of N.D.C.C. § 12.1-08-02(1); the court was not required to make a specific finding of fact on the issue of excessive force. State v. Brossart, 2007 ND 39, 729 N.W.2d 137, 2007 N.D. LEXIS 40 (N.D. 2007).

Jury Instruction.

Where self-defense and defense of others were the defendant’s primary defenses to the simple assault charge, the trial court’s refusal to give the instructions constituted reversible error under N.D.R.Crim.P. 52(a). State v. Thiel, 411 N.W.2d 66, 1987 N.D. LEXIS 364 (N.D. 1987).

The defendant was entitled to the instructions on self-defense and defense of another, although he refused to unequivocably admit striking the victim. State v. Thiel, 411 N.W.2d 66, 1987 N.D. LEXIS 364 (N.D. 1987).

Trial court did not commit obvious error by not including a jury instruction on self-defense during defendant’s trial for disorderly conduct because, without a showing of physical action upon another person, the failure to instruct the jury on self-defense was not error, let alone obvious error. State v. Gresz, 2006 ND 135, 717 N.W.2d 583, 2006 N.D. LEXIS 138 (N.D. 2006).

Where a victim testified that she was injured only after attacking defendant, a self-defense instruction under N.D.C.C. § 12.1-05-03 should have been given, even if defendant was the initial aggressor when he pushed in a bathroom door; the force used by the victim had to be clearly excessive. The victim testified at trial that she followed defendant out of the bathroom and struck him in the head with a large metal rod. State v. Falconer, 2007 ND 89, 732 N.W.2d 703, 2007 N.D. LEXIS 84 (N.D. 2007).

District court erred in failing to provide defendant’s requested jury instructions on consent and self-defense because whether the victim consented to the fight and whether the injury inflicted by defendant was such as to jeopardize life or seriously impair health were questions for the jury, and the district court impermissibly evaluated video evidence of the incident when it stated the video spoke for itself and defendant could have just walked away. City of Jamestown v. Kastet, 2022 ND 40, 970 N.W.2d 187, 2022 N.D. LEXIS 41 (N.D. 2022).

Justification.
—Not Shown.

Victim’s prior assault of defendant and the victim’s previous “implied threat” with a handgun did not support defendant’s theory of self-defense where, at the time of the incident in which defendant shot the victim, defendant was not in danger of imminent unlawful bodily injury and he could have safely retreated without using the rifle. Sampson v. State, 506 N.W.2d 722, 1993 N.D. LEXIS 173 (N.D. 1993), overruled in part, Whiteman v. State, 2002 ND 77, 643 N.W.2d 704, 2002 N.D. LEXIS 91 (N.D. 2002).

Reasonableness of Belief That Use of Force Necessary.

Finder of fact is required to use a subjective standard and view circumstances attending an accused’s use of force from standpoint of accused, and not from standpoint of what a reasonably cautious person might or might not do or consider necessary to do under like circumstances, to determine if the circumstances are sufficient to create in accused’s mind an honest and reasonable belief that use of force was necessary to protect himself from imminent harm. State v. Leidholm, 334 N.W.2d 811, 1983 N.D. LEXIS 296 (N.D. 1983).

Evidence was sufficient to convict defendant of aggravated assault because, although he asserted that there was no attempt, intent, or readiness to inflict serious bodily injury, the jury was permitted to draw its own inferences regarding defendant’s intent in using the beer bottle as a weapon and whether striking the other individual’s face with it causing a serious cut was reasonable self-defense based on defendant’s injuries sustained in the fight. State v. Hirschkorn, 2020 ND 268, 952 N.W.2d 225, 2020 N.D. LEXIS 268 (N.D. 2020).

Requirement of “Excessive Force”.

Forceful resistance to an arrest “under color of law” is no longer legally justified unless “excessive force” is used by the officer. State v. Ritter, 472 N.W.2d 444, 1991 N.D. LEXIS 121 (N.D. 1991).

Resisting Unlawful Arrest.

Unlawful official conduct is not an absolute defense to a preventing-arrest charge, and the law permits a defendant to resist only “excessive force” used to effect an arrest. The question of the reasonableness of the defendant’s conduct in resisting an unlawful arrest is properly determined by the jury upon all of the facts. State v. Cox, 532 N.W.2d 384, 1995 N.D. LEXIS 103 (N.D. 1995).

Where defendant was convicted of preventing arrest and related offenses after the jury received instructions on self-defense, the verdict had to be interpreted as finding that the officers did not use excessive force and that defendant was not justified under N.D.C.C. {/n 12.1-05-03(1) in using force to resist the arrest. State v. Mathre, 2004 ND 149, 683 N.W.2d 918, 2004 N.D. LEXIS 277 (N.D. 2004).

DECISIONS UNDER PRIOR LAW

Good Faith Belief.

On a plea of self-defense the question whether a defendant was, or in good faith believed himself to be, in such imminent danger that he was justified in using force to protect himself and the further question of whether the force he used was greater than the circumstances of the case warranted were questions for the jury. State v. Graber, 77 N.D. 645, 44 N.W.2d 798, 1950 N.D. LEXIS 160 (N.D. 1950).

One charged with aggravated assault and battery was entitled to acquittal if the jury found that he was repelling an attacker and reasonably believed, at the time, that he was acting with no more force than necessary to prevent the attack. State v. Jacob, 222 N.W.2d 586, 1974 N.D. LEXIS 157 (N.D. 1974).

When Force Employed.

Acts could not be regarded as having been done in self-defense where the force was employed after the necessity therefor had ceased to exist. State v. Graber, 77 N.D. 645, 44 N.W.2d 798, 1950 N.D. LEXIS 160 (N.D. 1950).

Collateral References.

Instructions: duty of trial court to instruct on self-defense, in absence of request by accused, 56 A.L.R.2d 1170.

Admissibility of evidence of uncommunicated threats on issue of self-defense in prosecution for homicide, 98 A.L.R.2d 6.

Admissibility of evidence as to other’s character or reputation for turbulence on question of self-defense by one charged with assault or homicide, 1 A.L.R.3d 571.

Relationship with assailant’s wife as provocation depriving defendant of right of self-defense, 9 A.L.R.3d 933.

Felony arrest: private person’s authority, in making arrest for felony, to shoot or kill alleged felon, 32 A.L.R.3d 1078.

Business premises: duty to retreat as condition of self-defense when one is attacked at his office, or place of business or employment, 41 A.L.R.3d 584.

Burden of proof: modern status of rules as to burden and quantum of proof to show self-defense in homicide, 43 A.L.R.3d 221.

Unintentional killing of or injury to third person during attempted self-defense, 55 A.L.R.3d 620.

Withdrawal, after provocation of conflict, as reviving right of self-defense, 55 A.L.R.3d 1000.

Criminal liability where act of killing is done by one resisting felony or other unlawful act committed by defendant, 56 A.L.R.3d 239.

Standard for determination of reasonableness of criminal defendant’s belief, for purposes of self-defense claim, that physical force is necessary — modern cases, 73 A.L.R.4th 993.

Admissibility, in homicide prosecution, of evidence as to tests made to ascertain distance from gun to victim when gun was fired, 11 A.L.R.5th 497.

Admissibility of evidence in homicide case that victim was threatened by one other than defendant, 11 A.L.R.5th 831.

Ineffective assistance of counsel: battered spouse syndrome as defense to homicide or other criminal offense, 11 A.L.R.5th 871.

Admissibility of evidence of battered child syndrome on issue of self-defense, 22 A.L.R.5th 787.

Admissibility of threats to defendant made by third parties to support claim of self-defense in criminal prosecution for assault or homicide, 55 A.L.R.5th 449.

What constitutes obstructing or resisting officer, in absence of actual force, 66 A.L.R.5th 397.

Homicide: duty to retreat where assailant and assailed share the same living quarters, 67 A.L.R.5th 637.

Law Reviews.

Criminal Law — Self-Defense — Jury Instructions Given on Subjective Standard of Reasonableness in Self-Defense Do Not Require a Specific Instruction on Battered Woman Syndrome, 60 N.D. L. Rev. 45 (1984).

Defending battered women: Everything she says may be used against them, 68 N.D. L. Rev. 131 (1992).

12.1-05-04. Defense of others.

A person is justified in using force upon another person in order to defend anyone else if:

  1. The person defended would be justified in defending himself; and
  2. The person coming to the defense has not, by provocation or otherwise, forfeited the right of self-defense.

Source: S.L. 1973, ch. 116, § 5.

Cross-References.

Right to use necessary force for protection of relatives or members of household, see N.D.C.C. § 14-02-07.

Notes to Decisions

Jury Instruction.

Where self-defense and defense of others were the defendant’s primary defenses to the simple assault charge, the trial court’s refusal to give the instructions constituted reversible error under N.D.R.Crim.P. 52(a). State v. Thiel, 411 N.W.2d 66, 1987 N.D. LEXIS 364 (N.D. 1987).

The defendant was entitled to the instructions on self-defense and defense of another, although he refused to unequivocably admit striking the victim. State v. Thiel, 411 N.W.2d 66, 1987 N.D. LEXIS 364 (N.D. 1987).

Collateral References.

Private person’s duty and liability for failure to protect another against criminal attack by third person, 10 A.L.R.3d 619.

Construction and application of statutes justifying the use of force to prevent the use of force against another, 71 A.L.R.4th 940.

Standard for determination of reasonableness of criminal defendant’s belief, for purposes of self-defense claim, that physical force is necessary — modern cases, 73 A.L.R.4th 993.

12.1-05-05. Use of force by persons with parental, custodial, or similar responsibilities.

The use of force upon an individual is justified under any of the following circumstances:

  1. Except as provided in section 15.1-19-02, a parent, guardian, or other person responsible for the care and supervision of a minor, or other person responsible for the care and supervision of a minor for a special purpose, or person acting at the direction of any of the foregoing persons, may use reasonable force upon the minor for the purpose of safeguarding or promoting the minor’s welfare, including prevention and punishment of the minor’s misconduct, and the maintenance of proper discipline.
    1. If the person using reasonable force for the prevention and punishment of the minor’s misconduct or the maintenance of proper discipline is a paid caregiver, that person must be acting under written direction of the parent or guardian of the minor.
    2. The reasonable force may be used for this purpose, regardless of whether the reasonable force is “necessary” as required by subsection 1 of section 12.1-05-07.
    3. The reasonable force used may not create a substantial risk of death, serious bodily injury, disfigurement, or gross degradation.
  2. A guardian or other person responsible for the care and supervision of an individual who is incompetent, or a person acting at the direction of the guardian or responsible person, may use reasonable force upon the individual for the purpose of safeguarding or promoting the welfare of the individual, including the prevention of the individual’s misconduct or, if the individual is in a hospital or other institution for care and custody, for the purpose of maintaining reasonable discipline in the institution.
    1. The force may be used for these purposes, regardless of whether the force is “necessary” as required by subsection 1 of section 12.1-05-07.
    2. The force used may not create a substantial risk of death, serious bodily injury, disfigurement, or gross degradation.
  3. A person responsible for the maintenance of order in a vehicle, train, vessel, aircraft, or other carrier, or in a place in which others are assembled, or a person acting at the responsible person’s direction, may use force to maintain order.
  4. A duly licensed physician, or a person acting at a duly licensed physician’s direction, may use force in order to administer a recognized form of treatment to promote the physical or mental health of a patient if the treatment is administered:
    1. In an emergency;
    2. With the consent of the patient, or, if the patient is a minor or an individual who is incompetent, with the consent of the patient’s parent, guardian, or other person entrusted with the patient’s care and supervision; or
    3. By order of a court of competent jurisdiction.
  5. A person may use force upon an individual about to commit suicide or suffer serious bodily injury, to prevent the death or serious bodily injury of that individual.

Source: S.L. 1973, ch. 116, § 5; 1989, ch. 162, § 1; 1999, ch. 164, § 2; 2019, ch. 106, § 1, effective August 1, 2019.

Notes to Decisions

Constitutionality.

Under N.D.C.C. § 12.1-05-05(1), reasonable force used to safeguard or promote the child’s welfare, including punishment and discipline, may not provide the basis for a finding that a child was an abused child under N.D.C.C. § 50-25.1-02(3); the father failed to clearly demonstrate that the child abuse statutes were unconstitutionally overbroad. Simons v. State, 2011 ND 190, 803 N.W.2d 587, 2011 N.D. LEXIS 186 (N.D. 2011).

Abused Child.

Reasoning mind reasonably could determine the Department of Human Services’ finding that the force the father used was not reasonable force was proven by the weight of the evidence from the entire record; his use of force was therefore not justified under N.D.C.C. § 12.1-05-05(1) and did not preclude a finding that the child was an abused child under N.D.C.C. § 50-25.1-02(3). Simons v. State, 2011 ND 190, 803 N.W.2d 587, 2011 N.D. LEXIS 186 (N.D. 2011).

Child Custody.

The legislature did not intend the reasonable force used by parents for the purposes listed in subsection (1) to constitute domestic violence for purposes of N.D.C.C. § 14-09-06.2(1)(j), if the amount of force used was not within the degree of domestic violence required to invoke the presumption against child custody in that section. Dinius v. Dinius, 1997 ND 115, 564 N.W.2d 300, 1997 N.D. LEXIS 105 (N.D. 1997).

Domestic Violence Not Found.

Trial court did not err in finding that a mother had not committed domestic violence by spanking and slapping her child across the face; the child protection service assessment report indicated neither parent abused or engaged in any inappropriate behavior with the child and no services were recommended and the mother stated that sometimes the child was spanked or tapped lightly on the face for discipline. Thompson v. Olson, 2006 ND 54, 711 N.W.2d 226, 2006 N.D. LEXIS 71 (N.D. 2006).

District court did not err in denying a father’s motion to modify custody because a single altercation in which the mother took the son’s cell phone away from him in disciplining him was an isolated incident that did not amount to domestic violence sufficient to constitute a material change of circumstances under N.D.C.C. § 14-09-06.6(6). Under N.D.C.C. § 12.1-05-05(1), a parent could use reasonable force upon a minor for the purpose of safeguarding or promoting the minor’s welfare, including prevention and punishment of the minor’s misconduct and the maintenance of proper discipline. Lechler v. Lechler, 2010 ND 158, 786 N.W.2d 733, 2010 N.D. LEXIS 156 (N.D. 2010).

Jury Instructions.

In a child abuse or neglect case under N.D.C.C. § 14-09-22(1)(a), defendant’s requested jury instruction incorrectly stated that the use of force by a parent or person responsible for caring for a minor was prima facie reasonable as long as it did not create a substantial risk of death, serious bodily injury, disfigurement, or gross degradation because the last sentence of N.D.C.C. § 12.1-05-05(1) was not an exclusive listing and other degrees of force could be found to constitute unreasonable force. State v. Pavlicek, 2012 ND 154, 819 N.W.2d 521, 2012 N.D. LEXIS 159 (N.D. 2012).

Teachers.

This section establishes a defense available to a teacher in a criminal action brought against teacher for use of physical force against a student; it does not grant teacher authority to use physical force in disciplining a student in disregard of a school board policy rule on use or nonuse of physical force in disciplining students. Lithun v. Grand Forks Pub. Sch. Dist., 307 N.W.2d 545, 1981 N.D. LEXIS 321 (N.D. 1981).

DECISIONS UNDER PRIOR LAW

Legislative Intent.

Former section demonstrated that legislature intended to make parents immune from liability resulting from their tortious acts only under circumstances set forth therein. Nuelle v. Wells, 154 N.W.2d 364, 1967 N.D. LEXIS 109 (N.D. 1967).

Collateral References.

Excessive or improper punishment inflicted on child by parent, teacher, or one in loco parentis, criminal liability for, 89 A.L.R.2d 396.

Public school teacher’s self-defense, or defense of another, as justification, in dismissal proceedings, for use or threat of use of force against student, 37 A.L.R.4th 842.

12.1-05-06. Use of force in defense of premises and property.

Force is justified if it is used to prevent or terminate an unlawful entry or other trespass in or upon premises, or to prevent an unlawful carrying away or damaging of property.

Source: S.L. 1973, ch. 116, § 5; 2021, ch. 106, § 1, effective August 1, 2021.

Notes to Decisions

Jury Instructions.

In a prosecution for terrorizing, the district court erred by failing to instruct the jury on defense of premises under N.D.C.C. § 12.1-05-06; defendant’s use of force to terminate a trespass could arguably have been justified if, before his threatening actions, he told the operators to leave his home, but instead they refused and remained, demanding further identification. This action arguably created a trespass in defendant’s home, and following the victims’ failure to leave as requested, defendant could possibly have been justified in his use of force to terminate this alleged trespass. State v. Starke, 2011 ND 147, 800 N.W.2d 705, 2011 N.D. LEXIS 147 (N.D. 2011).

District court did not err in failing to give defendant’s requested jury instruction on defense of premises and property because the victim was a cotenant, and there was no evidence he unlawfully entered the apartment or was trespassing; simply because an individual may have an expectation of privacy in a place for purposes of the Fourth Amendment, does not mean the individual has the ability to exclude all others from that place or that another’s entry into that place constitutes trespassing. State v. Samshal, 2013 ND 188, 838 N.W.2d 463, 2013 N.D. LEXIS 192 (N.D. 2013).

Collateral References.

Extent of premises which may be defended without retreat under right of self-defense, 52 A.L.R.2d 1458.

Civil liability for use of firearm in defense of habitation or property, 100 A.L.R.2d 1021.

Business premises: duty to retreat as condition of self-defense when one is attacked at his office, or place of business or employment, 41 A.L.R.3d 584.

Criminal liability where act of killing is done by one resisting felony or other unlawful act committed by defendant, 56 A.L.R.3d 239.

12.1-05-07. Limits on the use of force — Excessive force — Deadly force.

  1. An individual is not justified in using more force than is necessary and appropriate under the circumstances.
  2. Deadly force is justified in the following instances:
    1. When it is expressly authorized by law or occurs in the lawful conduct of war.
    2. When used in lawful self-defense, or in lawful defense of others, if such force is necessary to protect the actor or anyone else against death, serious bodily injury, or the commission of a felony involving violence. The use of deadly force is not justified if it can be avoided, with safety to the actor and others, by retreat or other conduct involving minimal interference with the freedom of the individual menaced. An individual seeking to protect another individual must, before using deadly force, try to cause the other individual to retreat, or otherwise comply with the requirements of this provision, if safety can be obtained thereby. However, the duty to retreat or avoid force does not apply under the following circumstances:
      1. A public servant justified in using force in the performance of the public servant’s duties or an individual justified in using force in assisting the public servant need not desist from the public servant’s or individual’s efforts because of resistance or threatened resistance by or on behalf of the other individual against whom the public servant’s or individual’s action is directed; and
      2. An individual who is not engaged in an unlawful activity that gives rise to the need for the use of deadly force and has not provoked the individual against whom the deadly force is used, unless the circumstances in subdivision b of subsection 2 of section 12.1-05-03 apply, is not required to retreat within or from any place the individual otherwise is legally allowed to be.
    3. When used by an individual in possession or control of a dwelling, place of work, motor vehicle, or an occupied motor home or travel trailer as defined in section 39-01-01, or by an individual who is licensed or privileged to be there, if the force is necessary to prevent commission of arson, burglary, robbery, or a felony involving violence upon or in the dwelling, place of work, motor vehicle, or occupied motor home or travel trailer, and the use of force other than deadly force for these purposes would expose any individual to substantial danger of serious bodily injury.
    4. When used by a public servant authorized to effect arrests or prevent escapes, if the force is necessary to effect an arrest or to prevent the escape from custody of an individual who has committed or attempted to commit a felony involving violence, or is attempting to escape by the use of a deadly weapon, or has otherwise indicated that the individual is likely to endanger human life or to inflict serious bodily injury unless apprehended without delay.
    5. When used by a guard or other public servant, if the force is necessary to prevent the escape of a prisoner from a detention facility, unless the guard or public servant knows that the prisoner is not an individual as described in subdivision d. A detention facility is any place used for the confinement, pursuant to a court order, of an individual charged with or convicted of an offense, charged with being or adjudicated a juvenile delinquent, held for extradition, or otherwise confined under court order.
    6. When used by a duly licensed physician, or an individual acting at the physician’s direction, if the force is necessary to administer a recognized form of treatment to promote the physical or mental health of a patient and if the treatment is administered in an emergency; with the consent of the patient, or, if the patient is a minor or an incompetent person, with the consent of the patient’s parent, guardian, or other person entrusted with the patient’s care and supervision; or by order of a court of competent jurisdiction.
    7. When used by an individual who is directed or authorized by a public servant, and who does not know that the public servant is not authorized to use deadly force under the circumstances.

Source: S.L. 1973, ch. 116, § 5; 2007, ch. 120, § 1; 2021, ch. 106, § 2, effective August 1, 2021.

Cross-References.

Right to use necessary force for protection of relatives or members of household, see N.D.C.C. § 14-02-07.

Notes to Decisions

Duty to Retreat.

Subject to exception involving a person’s dwelling or place of work, use of deadly force by an actor in self-defense is not justified if a retreat from assailant can be accomplished with safety to actor and others; whether or not actor could not retreat safely is determined by considering whether or not actor honestly and reasonably believed that he could not retreat from his attacker with safety. State v. Leidholm, 334 N.W.2d 811, 1983 N.D. LEXIS 296 (N.D. 1983).

Justification.
—Not Shown.

Victim’s prior assault of defendant and the victim’s previous “implied threat” with a handgun did not support defendant’s theory of self-defense where, at the time of the incident in which defendant shot the victim, defendant was not in danger of imminent unlawful bodily injury and he could have safely retreated without using the rifle. Sampson v. State, 506 N.W.2d 722, 1993 N.D. LEXIS 173 (N.D. 1993), overruled in part, Whiteman v. State, 2002 ND 77, 643 N.W.2d 704, 2002 N.D. LEXIS 91 (N.D. 2002).

DECISIONS UNDER PRIOR LAW

Burden on Defendant.

Circumstances had to be disclosed by the evidence tending to show justification or excuse, and where the state’s case did not disclose such circumstances, the burden devolved upon the defendant to disclose the same. State v. Hazlett, 16 N.D. 426, 113 N.W. 374, 1907 N.D. LEXIS 58 (N.D. 1907).

If the proof on the part of the prosecution tended to show that the defendant’s act was excusable or justifiable, there was no burden cast upon the defendant of proving anything. State v. Hazlett, 16 N.D. 426, 113 N.W. 374, 1907 N.D. LEXIS 58 (N.D. 1907).

The burden never shifted to the defendant to establish by a preponderance of the evidence either facts and circumstances in mitigation or excuse, or facts establishing an affirmative defense. State v. Hazlett, 16 N.D. 426, 113 N.W. 374, 1907 N.D. LEXIS 58 (N.D. 1907).

Duty of State.

Where defendant was charged with assault and battery with a deadly weapon with intent to kill, it was the duty of the state to prove that there was no justification or excuse in law. State v. Hoerner, 55 N.D. 761, 215 N.W. 277, 1927 N.D. LEXIS 160 (N.D. 1927).

Instruction on Excuse or Mitigation.

If the evidence was not before the court on appeal, it would assume that the omission to instruct as to excuses or mitigation of the offense was error. State v. Woods, 24 N.D. 156, 139 N.W. 321, 1912 N.D. LEXIS 21 (N.D. 1912).

Justification.

Homicide was not justified unless there existed actual or apparent danger of loss of life or great bodily harm. State v. Swift, 53 N.D. 916, 208 N.W. 388, 1926 N.D. LEXIS 36 (N.D. 1926).

Liability for Damages.

United States was liable for damages arising out of loss of eye by boy, fifteen years of age, while hunting, by negligence in discharge of a “coyote getter”, carrying a cyanide pellet, which had been installed without caution signs on private land by mammal control agent of federal government at request of landowner. Fritz v. United States, 216 F. Supp. 156, 1963 U.S. Dist. LEXIS 6284 (D.N.D. 1963).

Overt Act.

Defendant claiming self-defense had to show that deceased, at or before the start of the trouble, on the day the homicide was committed, did some overt act which indicated a present purpose on the part of the deceased to do immediate and great bodily harm to the defendant. State v. Lehman, 44 N.D. 572, 175 N.W. 736, 1919 N.D. LEXIS 223 (N.D. 1919).

Recapture.

The arrest and return of an escapee was not an arrest for the crime of escape, but a recapture under the direction of the warden for purposes of former statute allowing pursuer to break into a dwelling to retake an escaped prisoner. State v. Brodell, 220 N.W.2d 848, 1974 N.D. LEXIS 209 (N.D. 1974).

Retreat.

Where defendant charged with murder had means of retreat and could have left the scene of the conflict, thus avoiding further difficulty at the time, the right of self-defense terminated at that point. State v. Lehman, 44 N.D. 572, 175 N.W. 736, 1919 N.D. LEXIS 223 (N.D. 1919).

Collateral References.

Extent of premises which may be defended without retreat under right of self-defense, 52 A.L.R.2d 1458.

Admissibility of evidence as to other’s character or reputation for turbulence on question of self-defense by one charged with assault or homicide, 1 A.L.R.3d 571.

Felony arrest: private person’s authority, in making arrest for felony, to shoot or kill alleged felon, 32 A.L.R.3d 1078.

Business premises: duty to retreat as condition of self-defense when one is attacked at his office, or place of business or employment, 41 A.L.R.3d 584.

Unintentional killing of or injury to third person during attempted self-defense, 55 A.L.R.3d 620.

Withdrawal, after provocation of conflict, as reviving right of self-defense, 55 A.L.R.3d 1000.

Construction and application of statutes justifying the use of force to prevent the use of force against another, 71 A.L.R.4th 940.

Standard for determination of reasonableness of criminal defendant’s belief, for purposes of self-defense claim, that physical force is necessary — modern cases, 73 A.L.R.4th 993.

Homicide: duty to retreat where assailant and assailed share the same living quarters, 67 A.L.R.5th 637.

12.1-05-07.1. Use of deadly force — Presumption of fear of death or serious bodily injury.

  1. An individual is presumed to have held a reasonable fear of imminent peril of death or serious bodily injury to that individual or another when using deadly force if:
    1. The individual against whom the deadly force was used was in the process of unlawfully and forcibly entering, or had unlawfully and forcibly entered and remains within a dwelling, place of work, or occupied motor home or travel trailer as defined in section 39-01-01, or if the individual had removed or was attempting to remove another against that individual’s will from the dwelling, place of work, or occupied motor home or travel trailer as defined in section 39-01-01; and
    2. The individual who uses deadly force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.
  2. The presumption in subsection 1 may be rebutted by proof beyond a reasonable doubt that the individual who used the deadly force did not have a reasonable fear of imminent peril of death or serious bodily injury to that individual or another.
  3. The presumption in subsection 1 does not apply if the court finds that any of the following have occurred:
    1. The individual against whom the deadly force is used has the right to be in or is a lawful resident of the dwelling, place of work, or occupied motor home or travel trailer as defined in section 39-01-01, including an owner, lessee, or titleholder, and there is not a temporary or permanent domestic violence protection order or any other order of no contact against that individual;
    2. The individual removed or sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the individual against whom the deadly force is used;
    3. The individual who uses deadly force is engaged in the commission of a crime or is using the dwelling, place of work, or occupied motor home or travel trailer as defined in section 39-01-01 to further the commission of a crime; or
    4. The individual against whom the deadly force is used is a law enforcement officer who enters or attempts to enter a dwelling, place of work, or occupied motor home or travel trailer as defined in section 39-01-01 in the performance of official duties and the officer provided identification, if required, in accordance with any applicable law or warrant from a court, or if the individual using force knew or reasonably should have known that the individual entering or attempting to enter was a law enforcement officer.

Source: S.L. 2007, ch. 120, § 2.

12.1-05-07.2. Immunity from civil liability for justifiable use of force.

  1. An individual who uses force as permitted under this chapter is immune from civil liability for the use of the force to the individual against whom force was used or to that individual’s estate unless that individual is a law enforcement officer who was acting in the performance of official duties and the officer provided identification, if required, in accordance with any applicable law or warrant from a court, or if the individual using force knew or reasonably should have known that the individual was a law enforcement officer.
  2. The court shall award loss of income, reasonable attorney’s fees, court costs, and disbursements incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from civil liability as provided in subsection 1.

Source: S.L. 2007, ch. 120, § 3; 2021, ch. 106, § 3, effective August 1, 2021.

12.1-05-08. Excuse.

A person’s conduct is excused if he believes that the facts are such that his conduct is necessary and appropriate for any of the purposes which would establish a justification or excuse under this chapter, even though his belief is mistaken. However, if his belief is negligently or recklessly held, it is not an excuse in a prosecution for an offense for which negligence or recklessness, as the case may be, suffices to establish culpability. Excuse under this section is a defense or affirmative defense according to which type of defense would be established had the facts been as the person believed them to be.

Source: S.L. 1973, ch. 116, § 5.

Notes to Decisions

Applicability.

Where defendant was convicted of injuring a highway, a trial court did not err in denying defendant’s instruction on the defense of excuse because the justifications found in N.D.C.C. §§ 12.1-05-03 and 12.1-05-06 and the definition of “force” in N.D.C.C. ch. 12.1-05 contemplated taking action against another person, rather than against property. State v. Zajac, 2009 ND 119, 767 N.W.2d 825, 2009 N.D. LEXIS 133 (N.D. 2009).

Burden of Proof.

Because mistake of law is an affirmative defense, the state had no burden to “negate” the defense beyond a reasonable doubt; rather, defendants had the burden of proving the affirmative defense by a preponderance of the evidence. State v. Purdy, 491 N.W.2d 402, 1992 N.D. LEXIS 195 (N.D. 1992).

Inapplicability of Excuse Defense.

Because the offense of driving under revocation was committed prior to any police involvement, the excuse defense was inapplicable and the trial court did not err in refusing to instruct the jury on excuse. City of Mandan v. Willman, 439 N.W.2d 92, 1989 N.D. LEXIS 75 (N.D. 1989).

Where defendant felt compelled to drive due to instructions from the police, and defendant then drove while under suspension, the affirmative defense of compulsion did not apply because defendant had a reasonable opportunity to pursue other alternatives. City of Bismarck v. Lembke, 540 N.W.2d 155, 1995 N.D. LEXIS 218 (N.D. 1995).

Jury Instruction.

A defendant may be entitled to an excuse instruction if there is evidence presented at trial that the defendant has a reasonable but mistaken belief that any of the statutory grounds for justification in this chapter are present. State v. Ronne, 458 N.W.2d 294, 1990 N.D. LEXIS 144 (N.D. 1990).

Defendant did not claim his conduct was necessary and appropriate for any purpose which would establish a justification or excuse recognized under N.D.C.C. § 12.1-05-08, and moreover, defendant did not have to hunt until he had replacement tags or he could have tagged the deer immediately using the gratis tag he had in his possession; there was no evidence that defendant’s failure to immediately tag the deer was necessary or appropriate, and the evidence did not support an excuse instruction, and the district court did not err in refusing to give the requested jury instruction. State v. Ness, 2009 ND 182, 774 N.W.2d 254, 2009 N.D. LEXIS 192 (N.D. 2009).

Trial court did not err in refusing to give defendant’s requested jury instruction on excuse patterned after N.D.C.C. § 12.1-05-08 and a criminal jury instruction in a case where defendant was charged with and eventually convicted of violating an order prohibiting contact with a certain woman, even if that contact was consensual. The evidence presented at defendant’s trial did not show that defendant’s contact with the woman in violation of the order could be excused, as it was neither necessary nor justified. State v. Zottnick, 2011 ND 84, 796 N.W.2d 666, 2011 N.D. LEXIS 90 (N.D. 2011).

Necessary and Appropriate Conduct.

Under this section, if the circumstances are such that a person’s conduct is necessary and appropriate for any purpose which would establish a justification or excuse recognized in N.D.C.C. ch. 12.1-05, then that person’s conduct may be excused. State v. Nygaard, 447 N.W.2d 267, 1989 N.D. LEXIS 197 (N.D. 1989).

Reasonableness of Belief.
—In General.

This section limits the excuse defense to a mistaken belief that the facts are such that an actor’s conduct is necessary for any of the purposes which would establish a justification or excuse under this chapter, and in determining whether or not the actor’s mistaken belief was reasonable, a subjective standard of reasonableness applies. State v. Ronne, 458 N.W.2d 294, 1990 N.D. LEXIS 144 (N.D. 1990).

An unreasonably held belief precludes the affirmative defense of excuse for a strict liability offense. City of Bismarck v. Lembke, 540 N.W.2d 155, 1995 N.D. LEXIS 218 (N.D. 1995).

—Negligent or Reckless Belief.

Under this section, if the belief is negligently or recklessly held, it is not an excuse in a prosecution for an offense for which negligence or recklessness, as the case may be, suffices to establish culpability. As N.D.C.C. § 39-08-07 is a strict liability offense, negligence or recklessness is more than sufficient to establish culpability. Thus, driver who was at least negligent in not stopping to determine whether she had in fact struck another vehicle was not entitled to the defense of excuse based on lack of knowledge. State v. Nygaard, 447 N.W.2d 267, 1989 N.D. LEXIS 197 (N.D. 1989).

—That Use of Force Necessary.

Finder of fact is required to use a subjective standard and view circumstances attending an accused’s use of force from standpoint of accused, and not from standpoint of what a reasonably cautious person might or might not do or consider necessary to do under like circumstances, to determine if circumstances are sufficient to create in accused’s mind an honest and reasonable belief that use of force was necessary to protect himself from imminent harm. State v. Leidholm, 334 N.W.2d 811, 1983 N.D. LEXIS 296 (N.D. 1983).

Collateral References.

Druggist, criminal responsibility for death or injury in consequence of mistake, 55 A.L.R.2d 714.

Law Reviews.

Criminal Law — Self-Defense — Jury Instructions Given on Subjective Standard of Reasonableness in Self-Defense Do Not Require a Specific Instruction on Battered Woman Syndrome, 60 N.D. L. Rev. 45 (1984).

12.1-05-09. Mistake of law.

Except as otherwise expressly provided, a person’s good faith belief that conduct does not constitute a crime is an affirmative defense if he acted in reasonable reliance upon a statement of the law contained in:

  1. A statute or other enactment.
  2. A judicial decision, opinion, order, or judgment.
  3. An administrative order or grant of permission.
  4. An official interpretation of the public servant or body charged by law with responsibility for the interpretation, administration, or enforcement of the law defining the crime.

Source: S.L. 1973, ch. 116, § 5.

Notes to Decisions

Applicability.

The “mistake of law” defense is ordinarily not applicable when the governing statute does not contain a culpability requirement. State v. Eldred, 1997 ND 112, 564 N.W.2d 283, 1997 N.D. LEXIS 110 (N.D. 1997).

Defendant was properly prohibited from arguing a mistake of law defense under N.D.C.C. § 12.1-05-09 because his offense of possession of a firearm by a felon under N.D.C.C. § 62.1-02-01(2) was a strict liability offense. Defendant’s prior sentence for issuing a check without sufficient funds was not illegal because the district court only addressed the conditions of probation under N.D.C.C. § 12.1-32-07 and did not address whether defendant could possess or own a firearm after probation. N.D.C.C. § 62.1-02-01 explicitly prohibited defendant from possessing firearms after he had been convicted of a felony reduced to a misdemeanor under N.D.C.C.§ 12.1-32-02(9) and defendant was presumed to know the law and could not claim that the prohibition did not apply to him. State v. Buchholz, 2006 ND 227, 723 N.W.2d 534, 2006 N.D. LEXIS 232 (N.D. 2006).

Driving While License Suspended.

As a matter of law, defense of excuse based upon mistake of law is not applicable to prosecutions for driving while license suspended under N.D.C.C. § 39-06-42, a strict liability offense for which proof of culpability is not required. State v. Fridley, 335 N.W.2d 785, 1983 N.D. LEXIS 305 (N.D. 1983).

Mistake of law defense was not applicable to the strict liability offense of driving under suspension, where driver inquired about the status of his license, was correctly advised his license was not presently suspended, but was not informed that a notice of opportunity of hearing of proposed license suspension had been mailed to his last known address. State v. Egan, 1999 ND 59, 591 N.W.2d 150, 1999 N.D. LEXIS 64 (N.D. 1999).

Federal Criminal Code.

Title 12.1 is modeled after the proposed Federal Criminal Code, and in particular this section is identical to § 609 of the Final Report of the National Commission on Reform of Federal Criminal Laws. Because North Dakota’s statute is derived from the proposed Federal Criminal Code, the court may look to the draftsmen’s official commentaries for insight into the meaning and application of the statute. State v. Lang, 378 N.W.2d 205, 1985 N.D. LEXIS 429 (N.D. 1985).

Legal Brief.

A legal brief is not a document listed in this section upon which defendant could have relied to justify or excuse his conduct. State v. Lang, 378 N.W.2d 205, 1985 N.D. LEXIS 429 (N.D. 1985).

Self-Selected Beliefs.

Self-selected beliefs do not satisfy the requirements necessary to assert a mistake of law as a justification or excuse for conduct. State v. Lang, 378 N.W.2d 205, 1985 N.D. LEXIS 429 (N.D. 1985).

In a case involving a failure to register as a sex offender, a trial court did not commit an obvious error by failing to instruct a jury on the affirmative defense of mistake of law under N.D.C.C. § 12.1-05-09 because defendant did not offer any credible evidence to show that he took steps toward discovering if he had to register a change in employment. Instead, defendant relied on his self-selected belief that he did not need to register such change and that no one told him any differently. State v. Johnson, 2009 ND 76, 764 N.W.2d 696, 2009 N.D. LEXIS 77 (N.D. 2009).

Statement by Official.

Defendant who asserts affirmative defense of mistake of law based on a statement by an official must show reliance on a statement given by an official and that this reliance was reasonable. State v. Patten, 353 N.W.2d 30, 1984 N.D. LEXIS 331 (N.D. 1984).

Collateral References.

Fact that gun was unloaded as affecting criminal responsibility, 68 A.L.R.4th 507.

12.1-05-10. Duress.

  1. In a prosecution for any offense, it is an affirmative defense that the actor engaged in the proscribed conduct because he was compelled to do so by threat of imminent death or serious bodily injury to himself or to another. In a prosecution for an offense which does not constitute a felony, it is an affirmative defense that the actor engaged in the proscribed conduct because he was compelled to do so by force or threat of force. Compulsion within the meaning of this section exists only if the force, threat, or circumstances are such as would render a person of reasonable firmness incapable of resisting the pressure.
  2. The defense defined in this section is not available to a person who, by voluntarily entering into a criminal enterprise, or otherwise, willfully placed himself in a situation in which it was foreseeable that he would be subjected to duress. The defense is also unavailable if he was negligent in placing himself in such a situation, whenever negligence suffices to establish culpability for the offense charged.

Source: S.L. 1973, ch. 116, § 5.

Notes to Decisions

Driving Under Suspension.

An affirmative defense under this section is available for driving under suspension when the compulsion is from life-threatening forces of nature. State v. Rasmussen, 524 N.W.2d 843, 1994 N.D. LEXIS 256 (N.D. 1994).

Where defendant felt compelled to drive due to instructions from the police, and defendant then drove while under suspension, the affirmative defense of compulsion did not apply because defendant had a reasonable opportunity to pursue other alternatives. City of Bismarck v. Lembke, 540 N.W.2d 155, 1995 N.D. LEXIS 218 (N.D. 1995).

Evidence.

In a criminal contempt case arising from a visitation dispute, defendant was not entitled to jury instructions on the affirmative defenses of duress and entrapment because there was insufficient evidence to support the instructions; defendant conceded a lack of evidence to support an entrapment defense, and he did not present evidence of threats or assaults to support a duress defense under N.D.C.C. § 12.1-05-10(1). State v. Stockert, 2004 ND 146, 684 N.W.2d 605, 2004 N.D. LEXIS 276 (N.D. 2004).

DECISIONS UNDER PRIOR LAW

Financial Circumstances.

The duress which, under former N.D.C.C. § 12-05-04, excused acts otherwise criminal, was that such as would induce a well-founded fear of immediate great bodily harm or death; defendant in a robbery prosecution was not excused by the “duress” of his financial circumstances, which made him need money to provide his family with food and shelter. State v. Gann, 244 N.W.2d 746, 1976 N.D. LEXIS 124 (N.D. 1976).

Collateral References.

Defense to criminal prosecution, coercion, compulsion, or duress as, 40 A.L.R.2d 908.

Coercion, compulsion, or duress as defense to charge of robbery, larceny, or related crime, 1 A.L.R.4th 481.

Coercion, compulsion, or duress as defense to charge of kidnapping, 69 A.L.R.4th 1005.

Ineffective assistance of counsel: battered spouse syndrome as defense to homicide or other criminal offense, 11 A.L.R.5th 871.

12.1-05-11. Entrapment.

  1. It is an affirmative defense that the defendant was entrapped into committing the offense.
  2. A law enforcement agent perpetrates an entrapment if, for the purpose of obtaining evidence of the commission of a crime, the law enforcement agent induces or encourages and, as a direct result, causes another person to engage in conduct constituting such a crime by employing methods of persuasion or inducement which create a substantial risk that such crime will be committed by a person other than one who is ready to commit it. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.
  3. In this section “law enforcement agent” includes personnel of federal and local law enforcement agencies as well as state agencies, and any person cooperating with such an agency.

Source: S.L. 1973, ch. 116, § 5; 1993, ch. 117, § 1.

Cross-References.

Criminal solicitation, see N.D.C.C. § 12.1-06-03.

Notes to Decisions

Burden of Proof.

Defendant has the burden to prove the defense of entrapment by a preponderance of the evidence, and this requirement does not violate defendant’s right to due process. State v. Pfister, 264 N.W.2d 694, 1978 N.D. LEXIS 246 (N.D. 1978); State v. Hoffman, 291 N.W.2d 430, 1980 N.D. LEXIS 217 (N.D. 1980).

The affirmative defense of entrapment requires the defendant to prove, by a preponderance of evidence, that the law enforcement agent induced the commission of a crime and the method of inducement was likely to cause normally law-abiding persons to commit the offense. City of Mandan v. Willman, 439 N.W.2d 92, 1989 N.D. LEXIS 75 (N.D. 1989).

The defendant has the burden of proving, by a preponderance of evidence, the affirmative defense of entrapment. City of Bismarck v. Nassif, 449 N.W.2d 789, 1989 N.D. LEXIS 249 (N.D. 1989).

Delivery of Drugs.

Mere fact than an acquaintance of defendant was used to persuade defendant to sell marijuana to undercover police officer did not establish entrapment. State v. Weisz, 356 N.W.2d 462, 1984 N.D. LEXIS 399 (N.D. 1984).

Where a drug dealer delivered marijuana to the defendants’ home at the request of an undercover agent, but the drug dealer was not a law enforcement agent, the facts did not establish entrapment as a matter of law. State v. Nehring, 509 N.W.2d 42, 1993 N.D. LEXIS 218 (N.D. 1993).

Elements of Entrapment Defense.

In order to fashion an entrapment defense, defendant has burden to establish by a preponderance of evidence that law enforcement agent induced commisson of crime and that method of inducement was likely to cause normal law-abiding persons to commit offense. State v. Weisz, 356 N.W.2d 462, 1984 N.D. LEXIS 399 (N.D. 1984).

Entrapment Defense Unavailable.

Defendant who was charged with disorderly conduct after using “fighting words” to officers who came to his house after he reported that his car had been vandalized was not entitled to an instruction on entrapment on the grounds that the police knew that he was in an emotional state, but were not responsive to his inquiries, and thus provoked him into a higher state of agitation. City of Bismarck v. Nassif, 449 N.W.2d 789, 1989 N.D. LEXIS 249 (N.D. 1989).

Evidence Insufficient.

Where there was no dispute that defendant drove the pickup in the parking lot, or that the police officer observed defendant driving in the parking lot, this occurring prior to any police involvement, the trial court did not err in determining, as a matter of law, there was no entrapment. City of Mandan v. Willman, 439 N.W.2d 92, 1989 N.D. LEXIS 75 (N.D. 1989).

Evidence that defendant presented was not sufficient to establish N.D.C.C. § 12.1-05-11 entrapment as an affirmative defense to the charge against defendant of criminal attempt to possess methamphetamine, and, thus, that conviction had to stand. Defendant had the burden of proof of establishing that defense, by a preponderance of the evidence as required by N.D.C.C. § 12.1-01-03, and did not do so because the evidence that police offered defendant a good price in order to induce defendant to buy the methamphetamine and arranged for defendant to purchase methamphetamine despite knowing that defendant was a drug addict was not enough to show that police engaged in the necessary “outrageous conduct” that would cause a person who was not ready to commit the crime to commit it. State v. Schmidt, 2011 ND 238, 807 N.W.2d 593, 2011 N.D. LEXIS 233 (N.D. 2011).

Defendant failed to prove entrapment in connection with the crime of patronizing a minor for commercial sexual activity; the online advertisement and text messages from the undercover officer posing as a young girl merely afforded defendant an opportunity to commit a crime and did not shock the court’s conscience. State v. Rai, 2019 ND 71, 924 N.W.2d 410, 2019 N.D. LEXIS 62 (N.D. 2019).

Evidence Sufficient.

On an appeal of a controlled substance conviction where there was conflicting evidence regarding the informant’s conduct, whether or not the informant initiated the sale of marijuana and whether or not the informant improperly coerced commission of the offense, in viewing the evidence in the light most favorable to the verdict, there was substantial evidence to uphold the jury verdict of guilty. State v. Rehling, 426 N.W.2d 6, 1988 N.D. LEXIS 166 (N.D. 1988).

Where the evidence showed that law enforcement officers, without authorization by law, provided the cocaine that formed the basis for defendant’s prosecution, defendant had established entrapment as a matter of law. State v. Kummer, 481 N.W.2d 437, 1992 N.D. LEXIS 38 (N.D. 1992).

Instructions.

Use of this section’s phrase “normally law-abiding persons” in a court instruction on the defense of entrapment in a narcotics case is proper and not confusing to the jury, and an instruction that would omit such phrase might be erroneous. State v. Folk, 278 N.W.2d 410, 1979 N.D. LEXIS 187 (N.D. 1979).

Although there was no dispute that an agent assisting authorities was cooperating with law enforcement officials, the jury need not have been instructed that the agent was a “law enforcement agent” as a matter of law. State v. Erban, 429 N.W.2d 408, 1988 N.D. LEXIS 249 (N.D. 1988).

Jury Issue.

The issue of entrapment is to be determined by the jury unless there is no dispute as to the facts or the inferences to be drawn from them, in which case the court determines the issue as a matter of law. State v. Pfister, 264 N.W.2d 694, 1978 N.D. LEXIS 246 (N.D. 1978); State v. Hoffman, 291 N.W.2d 430, 1980 N.D. LEXIS 217 (N.D. 1980).

Because there was conflicting evidence regarding the conduct of the informant and the defendant, it could not be established as a matter of law that entrapment occurred, rather, this was properly an issue of fact for resolution by the jury. State v. Rehling, 426 N.W.2d 6, 1988 N.D. LEXIS 166 (N.D. 1988).

Since entrapment is a question of fact for the jury, the district court properly denied the defendant’s pre-trial motion to dismiss the charges based on entrapment. State v. Tester, 1999 ND 60, 592 N.W.2d 515, 1999 N.D. LEXIS 63 (N.D. 1999).

Law Enforcement Agent.

Purchaser of marijuana from defendant was not a “law enforcement agent” within meaning of this section where evidence showed she was a high school student who met police officer while they both worked at a service station, she never thought she was working for the officer, she was not cooperating with him or with any law enforcement agency to induce defendant to commit an offense, purchase of marijuana was mere accommodation to officer, and she believed it was for officer’s private use; thus, jury instruction on entrapment was properly refused. State v. Berger, 285 N.W.2d 533, 1979 N.D. LEXIS 308 (N.D. 1979).

List of Suspects.

The fact that the sheriff’s department provided an undercover police officer with a list of suspected drug users and dealers was not, by itself, evidence of entrapment. State v. Nehring, 509 N.W.2d 42, 1993 N.D. LEXIS 218 (N.D. 1993).

Paid Informant.

That paid informant received a fee from the police for each person he induced to sell drugs, and an additional fee if charges were filed against that person, was not dispositive of the issue of entrapment, where the fees were not exorbitant nor contingent upon a conviction, so neither the amount nor the nature of the fees posed a risk of improper inducement. State v. Murchison, 541 N.W.2d 435, 1995 N.D. LEXIS 233 (N.D. 1995).

Persuasion.

The clause “likely to cause normally law-abiding persons to commit the offense” modifies “persuasion” as well as “other means”. State v. Unterseher, 289 N.W.2d 201, 1980 N.D. LEXIS 187 (N.D. 1980).

Predisposition to Commit Crime.

Defendant’s predisposition to commit the crime is irrelevant in a determination of entrapment since this section adopts the objective test for entrapment. State v. Pfister, 264 N.W.2d 694, 1978 N.D. LEXIS 246 (N.D. 1978).

Defendant’s predisposition to commit the offense is irrelevant to an entrapment defense. State v. Mees, 272 N.W.2d 284, 1978 N.D. LEXIS 189 (N.D. 1978).

Under the more subjective standard of amended subsection (2), making more relevant the accused’s criminal predisposition, there was substantial evidence that defendant was predisposed, where an audio recording of drug deal showed that defendant had decided to sell some marijuana before paid informant asked to buy. State v. Murchison, 541 N.W.2d 435, 1995 N.D. LEXIS 233 (N.D. 1995).

This section, as amended in 1993, now places some relevance on the accused’s subjective predisposition to commit crime and is not entirely focused on the conduct of law enforcement officials. State v. Barnes, 551 N.W.2d 279, 1996 N.D. LEXIS 173 (N.D. 1996).

Test for Entrapment.

This section provides for the “normal law-abiding person” test or “objective” test of entrapment. State v. Hoffman, 291 N.W.2d 430, 1980 N.D. LEXIS 217 (N.D. 1980).

Collateral References.

Gambling or lotteries, entrapment to commit offense with respect to, 31 A.L.R.2d 1212.

Denial of participation by accused in offense as affecting availability of defense, 61 A.L.R.2d 677.

Bribery: entrapment to commit bribery or offer to bribe, 69 A.L.R.2d 1397.

Fish and game laws, entrapment with respect to violation of, 75 A.L.R.2d 709.

Obscenity laws, entrapment to commit offense against, 77 A.L.R.2d 792.

Larceny: entrapment or consent, 10 A.L.R.3d 1121.

Entrapment as procluding justification of arrest or imprisonment, 15 A.L.R.3d 963.

Defense of entrapment in contempt proceedings, 41 A.L.R.3d 418.

Rebuttal: admissibility of evidence of other offenses in rebuttal of defense of entrapment, 61 A.L.R.3d 293.

Narcotics offenses: modern status of the law concerning entrapment to commit narcotics offense — state cases, 62 A.L.R.3d 110.

Entrapment defense in sex offense prosecutions, 12 A.L.R.4th 413.

Burden of proof as to entrapment defense — state cases, 52 A.L.R.4th 775.

Entrapment as Defense to Charge of Selling or Supplying Narcotics Where Government Agents Supplied Narcotics to Defendant and Purchased Them from Him, 9 A.L.R.5th 464.

Right of criminal defendant to raise entrapment defense based on having dealt with other party who was entrapped, 15 A.L.R.5th 39.

Adequacy of Defense Counsel’s Representation of Criminal Client Regarding Entrapment Defense — State Cases. 43 A.L.R.6th 475.

Law Reviews.

Criminal Law — Entrapment; Illegal Police Conduct Get Stung by the Entrapment Defense in State v. Kummer, 69 N.D. L. Rev. 969 (1993).

12.1-05-12. Definitions.

In this chapter:

  1. “Deadly force” means force which a person uses with the intent of causing, or which he knows creates a substantial risk of causing, death or serious bodily injury. A threat to cause death or serious bodily injury, by the production of a weapon or otherwise, so long as the actor’s intent is limited to creating an apprehension that he will use deadly force if necessary, does not constitute deadly force.
  2. “Dwelling” means any building or structure, though movable or temporary, or a portion thereof, which is for the time being a person’s home or place of lodging.
  3. “Force” means physical action, threat, or menace against another, and includes confinement.
  4. “Premises” means all or any part of a building or real property, or any structure, vehicle, or watercraft used for overnight lodging of persons, or used by persons for carrying on business therein.

Source: S.L. 1973, ch. 116, § 5.

Notes to Decisions

Application.

District court did not err in failing to give defendant’s requested jury instruction on defense of premises and property because the victim was a cotenant, and there was no evidence he unlawfully entered the apartment or was trespassing; simply because an individual may have an expectation of privacy in a place for purposes of the Fourth Amendment, does not mean the individual has the ability to exclude all others from that place or that another’s entry into that place constitutes trespassing. State v. Samshal, 2013 ND 188, 838 N.W.2d 463, 2013 N.D. LEXIS 192 (N.D. 2013).

Force.

Where defendant was convicted of injuring a highway, a trial court did not err in denying defendant’s instruction on the defense of excuse because the justifications found in N.D.C.C. §§ 12.1-05-03 and 12.1-05-06 and the definition of “force” in N.D.C.C. ch. 12.1-05 contemplated taking action against another person, rather than against property. State v. Zajac, 2009 ND 119, 767 N.W.2d 825, 2009 N.D. LEXIS 133 (N.D. 2009).

Jury Instructions.

District court did not err in filing to give the entire jury instruction defendant requested for limits on the use of excessive or deadly force because there was evidence defendant fired a rifle in the victim’s direction, that he fired the rifle in his and the victim’s apartment, and that there were people living in neighboring apartment units; there was also evidence about defendant’s intent. State v. Samshal, 2013 ND 188, 838 N.W.2d 463, 2013 N.D. LEXIS 192 (N.D. 2013).

District court did not err in failing to give defendant’s requested jury instruction on defense of premises and property because the victim was a cotenant, and there was no evidence he unlawfully entered the apartment or was trespassing; simply because an individual may have an expectation of privacy in a place for purposes of the Fourth Amendment, does not mean the individual has the ability to exclude all others from that place or that another’s entry into that place constitutes trespassing. State v. Samshal, 2013 ND 188, 838 N.W.2d 463, 2013 N.D. LEXIS 192 (N.D. 2013).

CHAPTER 12.1-06 Criminal Attempt — Facilitation — Solicitation — Conspiracy

12.1-06-01. Criminal attempt.

  1. A person is guilty of criminal attempt if, acting with the kind of culpability otherwise required for commission of a crime, he intentionally engages in conduct which, in fact, constitutes a substantial step toward commission of the crime. A “substantial step” is any conduct which is strongly corroborative of the firmness of the actor’s intent to complete the commission of the crime. Factual or legal impossibility of committing the crime is not a defense, if the crime could have been committed had the attendant circumstances been as the actor believed them to be.
  2. A person who engages in conduct intending to aid another to commit a crime is guilty of criminal attempt if the conduct would establish his complicity under section 12.1-03-01 were the crime committed by the other person, even if the other is not guilty of committing or attempting the crime, for example, because he has a defense of justification or entrapment.
  3. Criminal attempt is an offense of the same class as the offense attempted, except that (a) an attempt to commit a class AA felony is a class A felony and an attempt to commit a class A felony is a class B felony; and (b) whenever it is established by a preponderance of the evidence at sentencing that the conduct constituting the attempt did not come dangerously close to commission of the crime, an attempt to commit a class B felony shall be a class C felony and an attempt to commit a class C felony shall be a class A misdemeanor.

Source: S.L. 1973, ch. 116, § 6; 1983, ch. 162, § 1.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Notes to Decisions

In General.

A person can be found guilty of a criminal attempt if “acting with the kind of culpability otherwise required for commission of a crime, he intentionally engages in conduct, which, in fact, constitutes a substantial step toward commission of the crime”. A “substantial step” is defined in this section as “any conduct which is strongly corroborative of the firmness of the actor’s intent to complete the commission of the crime.” State v. Wright, 470 N.W.2d 594, 1991 N.D. LEXIS 93 (N.D. 1991).

Plain language of the statute does not require the crime actually be committed by the other person. State v. Gunn, 2018 ND 95, 909 N.W.2d 701, 2018 N.D. LEXIS 101 (N.D.), cert. denied, — U.S. —, 139 S. Ct. 231, 202 L. Ed. 2d 128, 2018 U.S. LEXIS 5328 (U.S. 2018).

Attempted Gross Sexual Imposition.

Substantial evidence warranted defendant’s conviction for attempted gross sexual imposition because the State presented sufficient evidence of who the victim would be were the crime committed by her accomplice, who defendant communicated with on a social networking website; a detective testified that part of the conversation between defendant and the accomplice was role-playing, but the part in which defendant instructed the accomplice to sexually assault his daughter was not. State v. Gunn, 2018 ND 95, 909 N.W.2d 701, 2018 N.D. LEXIS 101 (N.D.), cert. denied, — U.S. —, 139 S. Ct. 231, 202 L. Ed. 2d 128, 2018 U.S. LEXIS 5328 (U.S. 2018).

Attempted Manufacture of Drugs.

Where the defendant’s criminal purpose was clearly demonstrated; he had gone as far as he could in implementing that purpose; and, as a result, his dangerousness was plainly manifested, he could not escape prosecution because he clumsily used the wrong brand of inhaler in attempting to manufacture a methamphetamine isomer. State v. Erban, 429 N.W.2d 408, 1988 N.D. LEXIS 249 (N.D. 1988).

Evidence was sufficient to convict defendant of criminal attempt to manufacture methamphetamine because (1) an agent with a narcotics task force testified that defendant possessed two prepared precursors of methamphetamine — cold pills and anhydrous ammonia; (2) those two of the six required chemical components of methamphetamine were the most difficult elements of methamphetamine to obtain, because each was regulated by state law; (3) although he still needed the over-the-counter items to complete the manufacturing process, the agent testified that defendant possessed enough of each of those two ingredients to manufacture methamphetamine; and (4) methamphetamine residue was found on a coffee filter found in defendant’s vehicle. State v. Stensaker, 2007 ND 6, 725 N.W.2d 883, 2007 N.D. LEXIS 7 (N.D. 2007).

Attempted Murder.

Attempt to “knowingly” commit a murder was a non-cognizable offense and the erroneous jury instruction allowing defendant’s conviction for attempted knowing murder was not harmless beyond a reasonable doubt because the instruction permitted the jury to convict for attempted knowing murder even if it agreed with his sole theory of defense that it was not his purpose to cause death. Pemberton v. State, 2021 ND 85, 959 N.W.2d 891, 2021 N.D. LEXIS 89 (N.D. 2021).

When considered together, defendant’s acts constituted a substantial step towards the commission of murder. Defendant’s solicitation accompanied by his assistance in formulating a plan to commit murder were concrete steps towards the commission of the crime. State v. Lail, 2020 ND 13, 937 N.W.2d 558, 2020 N.D. LEXIS 21 (N.D. 2020).

—In General.

Defendant convicted of attempted murder was properly sentenced to life imprisonment where shootings in question occurred prior to 1983 amendment of this section when attempted murder was a class AA felony. State v. Huber, 361 N.W.2d 236, 1985 N.D. LEXIS 244 (N.D.), cert. denied, 471 U.S. 1106, 105 S. Ct. 2339, 85 L. Ed. 2d 855, 1985 U.S. LEXIS 1867 (U.S. 1985).

Defendant’s convictions for attempted murder in violation of N.D.C.C. §§ 12.1-06-01(1) and 12.1-16-01 and reckless endangerment were appropriate based on defendant’s statements to a detective after the accident in which defendant tried to kill himself and his girlfriend. Defendant had told the detective that defendant “snapped” and that he floor-boarded the car and said that he was angling to collide with a semi tractor-trailer. State v. Frohlich, 2007 ND 45, 729 N.W.2d 148, 2007 N.D. LEXIS 41 (N.D. 2007).

Defendant’s conviction for attempted murder of a prosecutor, in violation of N.D.C.C. § 12.1-06-01(1)(a), was supported by the evidence because the jury heard evidence that defendant brought a loaded gun and three clips with 38 rounds of ammunition into a courtroom, stood in a “shooter’s stance” with two hands holding the gun pointed at the prosecutor’s chest, and pulled the trigger multiple times. State v. Chacano, 2013 ND 8, 826 N.W.2d 294, 2013 N.D. LEXIS 4 (N.D. 2013).

Petitioner’s attempted murder conviction was not a cognizable offense because attempt required an intent to complete the commission of the underlying crime, and murder under circumstances manifesting an extreme indifference to the value of human life results in an unintentional death. Dominguez v. State, 2013 ND 249, 840 N.W.2d 596, 2013 N.D. LEXIS 238 (N.D. 2013).

Because the attempted murder instruction options required the jury to find that petitioner intentionally attempted to murder a police officer, the jury could not him guilty of the incognizable offense of attempted murder. Keller v. State, 2015 ND 228, 869 N.W.2d 424, 2015 N.D. LEXIS 245 (N.D. 2015).

Attempting to cause the death of someone significantly differs from intentionally engaging in conduct which constitutes a step towards causing the death of another human being; attempting to cause the death of someone amounts to intentional attempted murder. Keller v. State, 2015 ND 228, 869 N.W.2d 424, 2015 N.D. LEXIS 245 (N.D. 2015).

—Lesser Included Offenses.

Aggravated assault under subsections 1, 2, and 3 of N.D.C.C. § 12.1-17-02, which require a bodily injury be suffered by victim, is not a lesser included offense of attempted murder; however, aggravated assault under subsection 4 of N.D.C.C. § 12.1-17-02, which does not require a bodily injury be suffered by victim, can be a lesser included offense of attempted murder. State v. Sheldon, 301 N.W.2d 604, 1980 N.D. LEXIS 342 (N.D. 1980), cert. denied, 450 U.S. 1002, 101 S. Ct. 1711, 68 L. Ed. 2d 204, 1981 U.S. LEXIS 1398 (U.S. 1981).

Trial court did not err in refusing to give an instruction on aggravated assault as a lesser included offense of attempted murder where the charge against the defendant did not allege that he fired a firearm or hurled a destructive device at the victim as provided for in subsection (4) of N.D.C.C. § 12.1-17-02, and where the State was only required to prove that defendant intentionally engaged in conduct which constituted a substantial step toward the commission of a crime and not that the victim suffered a bodily injury as required by a charge of aggravated assault. State v. Ellis, 2001 ND 84, 625 N.W.2d 544, 2001 N.D. LEXIS 89 (N.D. 2001).

Where defendant was charged with attempted murder for his involvement in a police shoot-out, the trial court properly denied his requested instruction on reckless endangerment as an included offense. A person can be convicted of attempted murder for having taken a substantial step toward commission of the crime of murder even if there never was, in fact, a substantial risk of serious bodily injury or death to another as required for reckless endangerment; in this case, defendant was properly convicted of both offenses for firing shots at police officers. State v. Keller, 2005 ND 86, 695 N.W.2d 703, 2005 N.D. LEXIS 94 (N.D. 2005).

Where defendant was charged with attempted murder for his involvement in a police shoot-out, the trial court did not err in refusing to give the jury instructions on criminal facilitation. Because it is possible to commit criminal attempt without assisting another, criminal facilitation is not a lesser included offense of attempted murder. State v. Keller, 2005 ND 86, 695 N.W.2d 703, 2005 N.D. LEXIS 94 (N.D. 2005).

Defendant was not entitled to a new trial because the verdict was not legally inconsistent where the culpability required for both murder under N.D.C.C. § 12.1-16-01(1)(b) and aggravated assault under N.D.C.C. § 12.1-17-02(1) was willfully, and for attempt under N.D.C.C. § 12.1-06-01(1), the culpability level of the substantial step conduct was intentionally; the culpability requirements for the two crimes were not identical because conviction of attempted murder in this case also required proof of circumstances manifesting extreme indifference to the value of human life and intentionality of the substantial step conduct, but in order to convict an individual of aggravated assault, there was no need to prove an absence of circumstances manifesting an extreme indifference to the value of human life, nor was there a need to prove an absence of intentionality; therefore, the jury’s verdict finding defendant guilty of both crimes was not legally inconsistent. State v. Coppage, 2008 ND 134, 751 N.W.2d 254, 2008 N.D. LEXIS 132 (N.D. 2008).

Attempted Obscenity.

Defendant’s motion to dismiss the charge of attempted promotion of obscenity to minors, N.D.C.C. §§ 12.1-27.1-03(1) and 12.1-06-01, should have been granted because the reckless culpability required for the offense of promoting obscenity to minors was inconsistent with and could not be rectified with the culpability required for criminal attempt. Even if the State could impose a higher burden than the statute required in an attempt to create a cognizable offense, the State had not done so where it did not allege in the information that defendant intentionally promoted the obscenity. State v. Richter, 2021 ND 55, 956 N.W.2d 421, 2021 N.D. LEXIS 46 (N.D. 2021).

Attempted Simple Assault.

Evidence was sufficient to convict defendant of attempted simple assault where the sheriff testified that defendant “swung, and he grazed the side of my face,” leaving a “mark on my face” and “also a mark on my knee where he had kicked me.” Defendant’s conduct evidenced he intentionally attempted to hit the sheriff and did hit and kick the sheriff, leaving visible marks on his body. State v. Barth, 2005 ND 134, 702 N.W.2d 1, 2005 N.D. LEXIS 169 (N.D. 2005).

Attempted Theft.

Evidence was sufficient to support conviction of attempted theft of property, N.D.C.C. § 12.1-23-02, where there was substantial evidence to prove that defendant, by grabbing shoulder of victim’s jacket and demanding his wallet and watch, intentionally engaged in conduct which constituted a substantial step toward committing crime of theft of property. State v. Saul, 346 N.W.2d 282, 1984 N.D. LEXIS 273 (N.D. 1984).

Extreme Emotional Disturbance.

Court did not err in refusing to grant an extreme emotional disturbance instruction, because too much time had passed between the death of defendant’s daughter and the crime for the disturbance to continue to operate as a mitigating factor; at some point in time, the emotional disturbance had to become attenuated, otherwise, as long as an individual remained distraught from an event, mitigation theoretically would perpetually exist. State v. Kirkpatrick, 2012 ND 229, 822 N.W.2d 851, 2012 N.D. LEXIS 224 (N.D. 2012).

First Amendment.

Online conversations between defendant and an accomplice were not protected by the First Amendment because they were integral to the commission of a crime; defendant’s private one-on-one messages to the accomplice provided detailed instructions on committing sex crimes against children, and her statements were integral to the crime of criminal attempt since they advocated and were likely to produce imminent lawless action. State v. Gunn, 2018 ND 95, 909 N.W.2d 701, 2018 N.D. LEXIS 101 (N.D.), cert. denied, — U.S. —, 139 S. Ct. 231, 202 L. Ed. 2d 128, 2018 U.S. LEXIS 5328 (U.S. 2018).

Impossibility Not a Defense.

Subsection (1) is intended to abolish impossibility as a defense whether based upon fact, law, or a combination of both. State v. Erban, 429 N.W.2d 408, 1988 N.D. LEXIS 249 (N.D. 1988).

Jury Instructions.

District court correctly instructed the jury on the culpability required for criminal attempt and correctly advised the jury of the law because the jury instructions followed the wording of the criminal attempt statute and also defined “accomplice,” which mirrored the text of the accomplice statute. State v. Gunn, 2018 ND 95, 909 N.W.2d 701, 2018 N.D. LEXIS 101 (N.D.), cert. denied, — U.S. —, 139 S. Ct. 231, 202 L. Ed. 2d 128, 2018 U.S. LEXIS 5328 (U.S. 2018).

Jury instructions in defendant’s prosecution for attempted murder of a law enforcement officer did not obviously err because (1) an elements instruction did not ignore the required mens rea, (2) the instructions communicated the applicable statute’s meaning, and (3) the law was accurately described. State v. Wangstad, 2018 ND 217, 917 N.W.2d 515, 2018 N.D. LEXIS 250 (N.D. 2018).

Mitigation of Offense.

The statute defining attempt itself mitigates the seriousness of the offense by reducing an attempted class AA felony to a class A felony. State v. Miller, 466 N.W.2d 128, 1991 N.D. LEXIS 29 (N.D. 1991).

Defendant’s claim had to be rejected that the trial court erred under N.D.C.C. § 12.1-06-01(3) in sentencing defendant, convicted on a charge of attempt to possess methamphetamine, for a class C felony rather than for a class A misdemeanor. Although defendant wanted to challenge whether defendant should have been sentenced to a lower level of the offense, defendant did not raise that issue in the trial court at sentencing and, thus, the issue was waived. State v. Schmidt, 2011 ND 238, 807 N.W.2d 593, 2011 N.D. LEXIS 233 (N.D. 2011).

DECISIONS UNDER PRIOR LAW

Attempt to Burn Buildings.

The fact that an information set forth that the attempt charged therein was a violation of the section making it a crime to attempt to burn buildings or property and prescribing specific penalties for the attempts falling within its terms did not render attempt section inapplicable, and, even though the crime intended or attempted was perpetrated by the defendant, he might be lawfully convicted of the attempt. State v. Braathen, 77 N.D. 309, 43 N.W.2d 202, 1950 N.D. LEXIS 131 (N.D. 1950).

Attempted Rape.

A conviction for attempt to commit rape was not vulnerable to attack because the information also charged assault with intent to commit a felony. State v. Murbach, 55 N.D. 846, 215 N.W. 552, 1927 N.D. LEXIS 177 (N.D. 1927).

Attempted Shooting.

To constitute the felony of shooting or attempting to shoot another with intent to injure that person, there had to be shown an attempt to carry out such intent. State v. Gunderson, 42 N.D. 498, 173 N.W. 791, 1919 N.D. LEXIS 172 (N.D. 1919).

“Inflicting Dangerous Wound.”

The inflicting of a dangerous wound with a deadly weapon without resulting death was punishable as a felony. State v. Mattison, 13 N.D. 391, 100 N.W. 1091, 1904 N.D. LEXIS 56 (N.D. 1904).

Intent and Overt Act.

An allegation of attempt to commit a crime implied two things, an intent and an overt act which tended directly toward but fell short of actual commission. State v. Maresch, 75 N.D. 229, 27 N.W.2d 1, 1947 N.D. LEXIS 62 (N.D. 1947).

Lesser Offenses.

Under an information charging rape in the first degree, the jury could return a verdict of rape in the second degree, or of assault with intent to commit rape. State v. Bancroft, 23 N.D. 442, 137 N.W. 37, 1912 N.D. LEXIS 106 (N.D. 1912).

Preparation.

It was impossible to formulate a rule which would constitute an unerring guide in determining whether a case involved acts falling on one side or the other of the line separating preparation from legal attempt. Cornwell v. Fraternal Accident Ass'n, 6 N.D. 201, 69 N.W. 191, 1896 N.D. LEXIS 19 (N.D. 1896); Reichert v. Turner, 62 N.D. 152, 242 N.W. 308, 1932 N.D. LEXIS 160 (N.D. 1932).

“Punishable.”

The inquiry as to how a crime was punishable related to the period or extent of punishment which could legally be imposed, and not to any lesser or discretionary period which might have been determined by the court in imposing sentence. King, 9 N.D. 149, 82 N.W. 423, 1900 N.D. LEXIS 207 (N.D. 1900).

Sentence Within Statutory Limits.

If the trial court in imposing sentence fixed the penalty within the limitations prescribed by statute the supreme court had no power to review the sentence, and this rule was not altered by the fact that the jury recommended leniency. State v. Holte, 87 N.W.2d 47, 1957 N.D. LEXIS 178 (N.D. 1957).

Collateral References.

Escape: what justifies escape or attempt to escape or assistance in that regard, 70 A.L.R.2d 1430.

Receiving stolen property: attempts to receive stolen property, 85 A.L.R.2d 259.

Escape: attempt to escape or commit prison breach as affected by means employed, 96 A.L.R.2d 520.

Larceny by trick, confidence game, false pretenses, and the like, attempts to commit offenses of, 6 A.L.R.3d 241.

Impossibility: comment note on impossibility of consummation of substantive crime as defense in criminal prosecution or for conspiracy or attempt to commit crime, 37 A.L.R.3d 375.

Murder: what constitutes attempted murder, 54 A.L.R.3d 612.

Price tags: changing of price tags by patron in self-service store as criminal offense, 60 A.L.R.3d 1293.

Duress, necessity, or conditions of confinement as justification for escape from prison, 69 A.L.R.3d 678.

What constitutes driving, operating, or being in control of motor vehicle for purposes of driving while intoxicated statutes, 93 A.L.R.3d 7.

Construction and application of state statute governing impossibility of consummation as defense to prosecution for attempt to commit crime, 41 A.L.R.4th 588.

Fact that gun was unloaded as affecting criminal responsibility, 68 A.L.R.4th 507.

Attempt to commit assault as criminal offense, 93 A.L.R.5th 683.

12.1-06-02. Criminal facilitation.

  1. A person is guilty of criminal facilitation if he knowingly provides substantial assistance to a person intending to commit a felony and that person, in fact, commits the crime contemplated, or a like or related felony, employing the assistance so provided. The ready lawful availability from others of the goods or services provided by a defendant is a factor to be considered in determining whether or not his assistance was substantial. This section does not apply to a person who is either expressly or by implication made not accountable by the statute defining the felony facilitated or related statutes.
  2. Except as otherwise provided, it is no defense to a prosecution under this section that the person whose conduct the defendant facilitated has been acquitted, has not been prosecuted or convicted, has been convicted of a different offense, is immune from prosecution, or is otherwise not subject to justice.
  3. Facilitation of a class A felony is a class C felony. Facilitation of a class B or class C felony is a class A misdemeanor.

Source: S.L. 1973, ch. 116, § 6.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Notes to Decisions

Constitutionality.

This section and the accomplice statute, N.D.C.C. § 12.1-03-01, are clear and unambiguous and do not have the same, or a virtually indistinguishable, burden of proof; therefore, this section and the accomplice statute do not violate the fourteenth amendment of the United States Constitution or Art. I, §§ 12 and 21 of the state constitution by prohibiting the same acts with different penalties. State v. Ballard, 328 N.W.2d 251, 1982 N.D. LEXIS 395 (N.D. 1982).

Accomplice Statute Distinguished.

This section and the accomplice statute, N.D.C.C. § 12.1-03-01, provide for separate offenses; under the accomplice statute, the giving of aid with intent that the offense be committed is the key element, whereas under this section knowingly providing assistance without intent to commit an offense to a person who intends to commit a felony and actually commits the crime contemplated is the key element. State v. Ballard, 328 N.W.2d 251, 1982 N.D. LEXIS 395 (N.D. 1982).

Lesser Included Offense of Accomplice.

Criminal facilitation is a lesser included offense to accomplice liability. State v. Langan, 410 N.W.2d 149, 1987 N.D. LEXIS 368 (N.D. 1987).

Where the same evidence from which a juror could infer that the defendant aided another with intent that the other commit an offense (accomplice liability) could also allow a juror to infer that she only aided another with knowledge that the other intended to commit an offense (facilitation), there was evidence which could create a reasonable doubt as to accomplice liability and support a conviction of criminal facilitation, and the trial court’s refusal to give a lesser included offense instruction constituted prejudicial error. State v. Langan, 410 N.W.2d 149, 1987 N.D. LEXIS 368 (N.D. 1987).

Not a Lesser Included Offense of Attempted Murder.

Where defendant was charged with attempted murder for his involvement in a police shoot-out, the trial court did not err in refusing to give the jury instructions on criminal facilitation. Because it is possible to commit criminal attempt without assisting another, criminal facilitation is not a lesser included offense of attempted murder. State v. Keller, 2005 ND 86, 695 N.W.2d 703, 2005 N.D. LEXIS 94 (N.D. 2005).

Not a Lesser Included Offense of Conspiracy.

Where defendant was charged with conspiracy to commit murder, the trial court did not err in refusing to give the jury instructions on criminal facilitation. Facilitation, by definition, is not a lesser included offense of conspiracy to commit murder, because it is possible to commit the crime of conspiracy without necessarily committing the crime of facilitation. State v. Keller, 2005 ND 86, 695 N.W.2d 703, 2005 N.D. LEXIS 94 (N.D. 2005).

Law Reviews.

“A Comparison of Drinking and Driving Law in Norway and North Dakota: More Than a Difference in Penalties,” 76 N.D. L. Rev. 33 (2000).

12.1-06-03. Criminal solicitation.

  1. A person is guilty of criminal solicitation if he commands, induces, entreats, or otherwise attempts to persuade another person to commit a particular felony, whether as principal or accomplice, with intent to promote or facilitate the commission of that felony, under circumstances strongly corroborative of that intent, and if the person solicited commits an overt act in response to the solicitation.
  2. It is a defense to a prosecution under this section that, if the criminal object were achieved, the defendant would be a victim of the offense, or the offense is so defined that his conduct would be inevitably incident to its commission, or he otherwise would not be guilty under the statute defining the offense or as an accomplice under section 12.1-03-01.
  3. It is no defense to a prosecution under this section that the person solicited could not be guilty of the offense because of lack of responsibility or culpability, or other incapacity or defense.
  4. Criminal solicitation is an offense of the class next below that of the offense solicited.

Source: S.L. 1973, ch. 116, § 6.

Cross-References.

Obstruction of proceedings, soliciting, see N.D.C.C. § 12.1-10-06.

Soliciting outside this state for criminal action within this state, prosecution, see N.D.C.C. § 29-03-01.1.

Collateral References.

Construction and effect of statutes making solicitation to commit crime a substantive offense, 51 A.L.R.2d 953.

Validity and construction of statute or ordinance proscribing solicitation for purposes of prostitution, lewdness, or assignation, 77 A.L.R.3d 519.

Solicitation to commit crime against more than one person or property, made in single conversation, as single or multiple crimes, 24 A.L.R.4th 1324.

Validity, Construction, and Application of 18 U.S.C.S. § 373, Proscribing Solicitation to Commit Crime of Violence. 49 A.L.R. Fed. 2d 333.

12.1-06-04. Criminal conspiracy.

  1. 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. The agreement need not be explicit but may be implicit in the fact of collaboration or existence of other circumstances.
  2. If a person knows or could expect that one with whom he agrees has agreed or will agree with another to effect the same objective, he shall be deemed to have agreed with the other, whether or not he knows the other’s identity.
  3. A conspiracy shall be deemed to continue until its objectives are accomplished, frustrated, or abandoned. “Objectives” includes escape from the scene of the crime, distribution of booty, and measures, other than silence, for concealing the crime or obstructing justice in relation to it. A conspiracy shall be deemed abandoned if no overt act to effect its objectives has been committed by any conspirator during the applicable period of limitations.
  4. It is no defense to a prosecution under this section that the person with whom such person is alleged to have conspired has been acquitted, has not been prosecuted or convicted, has been convicted of a different offense, is immune from prosecution, or is otherwise not subject to justice.
  5. Accomplice liability for offenses committed in furtherance of the conspiracy is to be determined as provided in section 12.1-03-01.
  6. Conspiracy is an offense of the same class as the crime which was the objective of the conspiracy.

Source: S.L. 1973, ch. 116, § 6; 1983, ch. 162, § 2.

Notes to Decisions

Constitutionality.

As applied in the instant case, this section was not unconstitutionally vague. State v. Lind, 322 N.W.2d 826, 1982 N.D. LEXIS 366 (N.D. 1982).

Common Law.

The elements of common-law conspiracy are identical to the elements of the statutory crime of conspiracy. State v. Coutts, 364 N.W.2d 88, 1985 N.D. LEXIS 270 (N.D. 1985).

Conspiracy to Commit Murder.

Because the information and jury instructions did not reference extreme indifference to the value of human life, and considering the facts of the case included a plan to kill a law enforcement officer, it was logical that the jury properly found petitioner guilty of conspiring to commit intentional murder under N.D.C.C. § 12.1-06-04 and N.D.C.C. § 12.1-16-01(1)(a), rather than § 12.1-16-01(1)(b). Keller v. State, 2015 ND 228, 869 N.W.2d 424, 2015 N.D. LEXIS 245 (N.D. 2015).

Under judicial precedent, a charge of conspiracy to commit murder required the State to prove an intent to cause the death of another human being, and conspiracy to commit extreme indifference murder, under N.D.C.C. §§ 12.1-06-04 and 12.1-16-01(1)(b), was not a cognizable offense. State v. Swanson, 2019 ND 181, 930 N.W.2d 645, 2019 N.D. LEXIS 185 (N.D. 2019).

Because the inclusion of knowingly in the jury instruction allowed the jury to convict defendant of conspiracy to commit murder without an intent to cause the death of another human being, the instruction was improper and allowed defendant to have potentially been convicted of a non-cognizable offense. State v. Swanson, 2019 ND 181, 930 N.W.2d 645, 2019 N.D. LEXIS 185 (N.D. 2019).

Elements of Offense.

Crime of conspiracy requires an agreement, as explained, this section, and commission of an overt act; an overt act may be an act of only a single one of the conspirators and need not be itself a crime. State v. Lind, 322 N.W.2d 826, 1982 N.D. LEXIS 366 (N.D. 1982).

Where the defendant agreed to engage in conduct which constitutes an offense, i.e., the delivery of a controlled substance, and she performed an overt act in furtherance of that agreement, her conduct thus satisfies the elements of criminal conspiracy under subsection 1. State v. Coutts, 364 N.W.2d 88, 1985 N.D. LEXIS 270 (N.D. 1985).

Trial court did not abuse its discretion in dismissing conspiracy count in information which failed to allege an overt act in furtherance of the conspiracy. State v. Gwyther, 1999 ND 15, 589 N.W.2d 575, 1999 N.D. LEXIS 17 (N.D. 1999).

Proof of a buyer-seller relationship in itself is not enough to prove a conspiracy to deliver a controlled substance, and without more, evidence that a buyer was reselling the substance is insufficient. The “something more” required is an understanding between the buyer and seller, often implicit, relating to the subsequent distribution by the buyer. State v. Gonzalez, 2000 ND 32, 606 N.W.2d 873, 2000 N.D. LEXIS 20 (N.D. 2000).

When a homeowner and her husband started a fire intending to destroy or damage their home and collect insurance on the loss, conspiracy to commit arson existed even when the insurance had lapsed without their knowledge. State v. Beciraj, 2003 ND 173, 671 N.W.2d 250, 2003 N.D. LEXIS 177 (N.D. 2003).

Charge of conspiracy to commit murder under N.D.C.C. §§ 12.1-06-04 and 12.1-16-01(1)(b) was not a cognizable offense because conspiracy was a specific intent crime requiring intent to agree and intent to achieve a particular result that was criminal. State v. Borner, 2013 ND 141, 836 N.W.2d 383, 2013 N.D. LEXIS 151 (N.D. 2013).

Evidence Insufficient.

Evidence was insufficient to show conspiracy to deliver controlled substances, as there was no evidence defendant and alleged co-conspirator were partners or assisted each other in delivering controlled substances. State v. Serr, 1998 ND 66, 575 N.W.2d 896, 1998 N.D. LEXIS 64 (N.D. 1998).

The trial court abused it’s discretion in denying defendant’s motion for judgment of acquittal where the evidence was insufficient to support defendant’s conviction of conspiracy; there was no evidence that the informant was going to resell the drugs, that the informant discussed the resale of the drugs with defendant, that he agreed with defendant to distribute the drugs, or that defendant believed the drugs would be resold. State v. Gonzalez, 2000 ND 32, 606 N.W.2d 873, 2000 N.D. LEXIS 20 (N.D. 2000).

Evidence Sufficient.

Evidence was sufficient to support conviction for conspiracy to deliver a controlled substance where, at the time the overt acts which effected an objective of the conspiracy were committed, the co-conspirator was not acting in concert with the police. State v. Burgard, 458 N.W.2d 274, 1990 N.D. LEXIS 131 (N.D. 1990).

There was sufficient evidence to support defendant’s conviction for conspiracy to deliver a controlled substance. State v. McKinney, 518 N.W.2d 696, 1994 N.D. LEXIS 147 (N.D. 1994).

The juvenile court did not err in finding reasonable grounds under N.D.C.C. § 27-20-34(1)(c)(4)(a) to believe that juvenile committed alleged delinquent act of conspiracy to commit armed robbery, where the juvenile was present when another left the juvenile’s residence with shotgun to commit an armed robbery, and he was present in the car when others robbed and shot victim in another car. Dawson v. Guerrero (In re J.A.G.), 552 N.W.2d 317, 1996 N.D. LEXIS 163 (N.D. 1996).

Evidence was sufficient to establish implicit agreement required to prove juvenile committed delinquent act of conspiracy to commit unlawful entry into or concealment within a motor vehicle, where juvenile provided access to his parent’s car to transport others to the vehicle, he knew the others had previously broken into and stolen property from the vehicle, and he voluntarily returned to the vehicle with them a second time. J.C.S. v. J.C.S., 1997 ND 126, 565 N.W.2d 759, 1997 N.D. LEXIS 128 (N.D. 1997).

Evidence that the defendant had an arrangement in which another person would act as a conduit to get methamphetamine to a third party was sufficient to sustain a conviction for conspiracy to deliver a controlled substance. State v. Freed, 1999 ND 185, 599 N.W.2d 858, 1999 N.D. LEXIS 203 (N.D. 1999).

Sufficient evidence supported a conviction for conspiracy to commit arson where there was no evidence of an accidental cause, very few household items remained in the burned mobile home, neighbors testified that they saw the defendant carrying bags away from the home on the day of the fire, and the defendant’s husband said that the family had insurance and expected to receive money donated from the community. State v. Beciraj, 2003 ND 173, 671 N.W.2d 250, 2003 N.D. LEXIS 177 (N.D. 2003).

Where defendant and his co-conspirator were involved in illegal drugs and carried out a police shoot-out as part of a plan to avoid being arrested, the evidence was sufficient to establish overt acts in furtherance of that agreement; defendant was properly convicted of conspiracy to commit murder. During the shoot-out, his co-conspirator was killed. State v. Keller, 2005 ND 86, 695 N.W.2d 703, 2005 N.D. LEXIS 94 (N.D. 2005).

Evidence was sufficient to sustain a conviction for conspiracy to commit aggravated assault under N.D.C.C. § 12.1-06-04 because defendant provided the coconspirator with the weapon the coconspirator used to beat the victim and then joined in the beating; based on either act, defendant and the coconspirator agreed to assault the victim. State v. Cain, 2011 ND 213, 806 N.W.2d 597, 2011 N.D. LEXIS 208 (N.D. 2011).

Evidence was sufficient to sustain defendant’s conviction of conspiracy to commit burglary against defendant’s son-in-law, because the jury could properly infer the discussions between defendant and his acquaintance of taking the son-in-law’s items, and their later discovery in the acquaintance’s possession, evidenced an agreement to burglarize the son-in-law’s home. State v. Kirkpatrick, 2012 ND 229, 822 N.W.2d 851, 2012 N.D. LEXIS 224 (N.D. 2012).

Evidence was sufficient to support convictions for leading a criminal association to commit felonious acts and conspiracy to commit aggravated assault where there was testimony during the trial of defendant supplying drugs to individuals for sale and offering a reward for kicking a victim's teeth in. State v. Owens, 2015 ND 68, 860 N.W.2d 817, 2015 N.D. LEXIS 66 (N.D. 2015).

Evidence was sufficient to support a conviction for conspiracy to commit murder because the jury could have believed that defendant and another person were serious when a statement was made that they were so mad that they could kill someone, especially given their conduct during a killing. Defendant's actions during the murder and his subsequent conduct to clean up or conceal the crime satisfied the definition of an objective of the conspiracy. State v. Clark, 2015 ND 201, 868 N.W.2d 363, 2015 N.D. LEXIS 215 (N.D. 2015).

Evidence was constitutionally sufficient to support the inmate's conviction for criminal conspiracy because the evidence supported the findings that the inmate and his friend participated in committing the murder and attempting to conceal it because their joint attempts to conceal the murder may have been interpreted as evidence of an implicit agreement to murder the victim without getting caught, and were relevant not only to demonstrate a potential conspiracy to conceal the crime, but a conspiracy to commit the crime itself, the evidence included events that occurred while the victim was injured but remained alive, and the inmate admitted that he participated in the events that ultimately lead to the victim's death. Howard v. Braun, 862 F.3d 706, 2017 U.S. App. LEXIS 12036 (8th Cir. N.D. 2017).

Evidence was sufficient to convict defendant of conspiring with his co-defendants to cause a financial loss greater than $ 10,000 to a company because a video played for the jury showed defendant and the codefendants discussing their plans; inside a notebook were sticky notes with names of multiple people associated with actions that were part of the coordinated event. State v. Foster, 2019 ND 28, 921 N.W.2d 454, 2019 N.D. LEXIS 19 (N.D. 2019).

Court did not err when it found a lack of evidence for the drug procurement to qualify as an overt act because testimony indicated that defendant already had it in her possession when the conversation between herself and the alleged co-conspirators took place - before they made any agreement. State v. Howard, 2021 ND 101, 960 N.W.2d 775, 2021 N.D. LEXIS 104 (N.D. 2021).

Court erred when it found no evidence establishing probable cause that defendant and the alleged co-conspirator committed an overt act to effect the conspiracy because, although the court found no nexus, a timing nexus existed between the recorded meeting and the text messages linking them to the messages. State v. Howard, 2021 ND 101, 960 N.W.2d 775, 2021 N.D. LEXIS 104 (N.D. 2021).

Individualized Intent.

The word “agreement” within subsection (1) focuses upon the individualized intent and conduct of the defendant-conspirator, regardless of any secret intent of co-conspirators. State v. Rambousek, 479 N.W.2d 832, 1992 N.D. LEXIS 12 (N.D. 1992).

Juvenile Offender.

The State met its burden of persuasion and established reasonable grounds to believe that juvenile committed delinquent act of conspiracy to commit armed robbery. Dawson v. Esparza (In the Interest of A.E.), 1997 ND 9, 559 N.W.2d 215, 1997 N.D. LEXIS 8 (N.D. 1997).

Lesser Included Offenses.

Where defendant was charged with conspiracy to commit murder, the trial court did not err in refusing to give the jury instructions on criminal facilitation. Facilitation, by definition, is not a lesser included offense of conspiracy to commit murder, because it is possible to commit the crime of conspiracy without necessarily committing the crime of facilitation. State v. Keller, 2005 ND 86, 695 N.W.2d 703, 2005 N.D. LEXIS 94 (N.D. 2005).

Obvious Error.

Rule was applied to avoid manifest injustice and provide defendant with the same relief granted his codefendant because in the codefendant’s trial, the trial court obviously erred when it failed to require proof of an essential element of the offense and failed to recognize the information was defective; defendant was also prejudiced by the error, and to deny him the relief granted his codefendant would seriously affected the fairness, integrity, and public reputation of the criminal jury trial. State v. Whitman, 2013 ND 183, 838 N.W.2d 401, 2013 N.D. LEXIS 196 (N.D. 2013).

Uniform Controlled Substances Act.

The conspiracy provisions of this section and N.D.C.C. § 12.1-06-05 apply to the Uniform Controlled Substances Act, N.D.C.C. ch. 19-03.1. State v. Coutts, 364 N.W.2d 88, 1985 N.D. LEXIS 270 (N.D. 1985).

Unilateral Approach.

The legislature intended a unilateral, not bilateral, approach to conspiracy. The unilateral approach requires only that defendant believe that he was participating in an agreement with another to engage in criminal conduct, manifested by some overt act, for defendant to be guilty of conspiracy. State v. Rambousek, 479 N.W.2d 832, 1992 N.D. LEXIS 12 (N.D. 1992).

DECISIONS UNDER PRIOR LAW

Civil Action.

Generally the civil action of conspiracy was a tort action and could not be maintained merely for inducing a third person to break his contract with the plaintiff except where direct fraud, force, or coercion had been used. Sleeper v. Baker, 22 N.D. 386, 134 N.W. 716, 1911 N.D. LEXIS 71 (N.D. 1911); Wedwik v. Russell-Miller Milling Co., 64 N.D. 690, 256 N.W. 107, 1934 N.D. LEXIS 252 (N.D. 1934).

“Felony.”

A felony, within the constitutional provision that no person convicted of a felony shall be qualified to vote at any election unless restored to civil rights, was a crime which was or could be punishable with death or imprisonment in the penitentiary, and conviction of the crime of conspiracy under a federal law designating the crime a felony disqualified the person convicted even though conspiracy was only a misdemeanor under state law. State ex rel. Olson v. Langer, 65 N.D. 68, 256 N.W. 377, 1934 N.D. LEXIS 178 (N.D. 1934).

Collateral References.

Breach of contract, conspiracy to induce, 26 A.L.R.2d 1227.

Conviction or acquittal of attempt to commit particular crime as bar to prosecution for conspiracy to commit same crime, or vice versa, 53 A.L.R.2d 622.

Entrapment: availability of defense of entrapment where one accused of conspiracy denies participation in offense, 61 A.L.R.2d 677.

Limitation of actions: when does statute of limitations begin to run against civil action or criminal prosecution for conspiracy, 62 A.L.R.2d 1369.

Gambling, criminal conspiracies as to, 91 A.L.R.2d 1205.

Admissibility of statements of coconspirators made after termination of conspiracy and outside accused’s presence, 4 A.L.R.3d 671.

Jurisdiction to prosecute conspirator who is not in state at time of substantive criminal act, for offense committed pursuant to conspiracy, 5 A.L.R.3d 887.

Impossibility: comment note on impossibility of consummation of substantive crime as defense in criminal prosecution for conspiracy or attempt to commit crime, 37 A.L.R.3d 375.

Corporations: criminal liability of corporation for bribery or conspiracy to bribe public official, 52 A.L.R.3d 1274.

Criminal conspiracy between spouses, 74 A.L.R.3d 838.

Criminal liability for wrongfully obtaining unemployment benefits, 80 A.L.R.3d 1280.

Right of defendants in prosecution for criminal conspiracy to separate trials, 82 A.L.R.3d 366.

Prosecution or conviction of one conspirator as affected by disposition of case against coconspirators, 19 A.L.R.4th 192.

Criminal liability under state laws in connection with application for, or receipt of, public welfare payments, 22 A.L.R.4th 534.

Sufficiency of evidence to establish criminal participation by individual involved in gang fight or assault, 24 A.L.R.4th 243.

Punitive damages for interference with contract or business relationship, 44 A.L.R.4th 1078.

12.1-06-05. General provisions.

  1. The definition of an offense in sections 12.1-06-01 to 12.1-06-04 does not apply to another offense also defined in sections 12.1-06-01 to 12.1-06-04.
  2. Whenever “attempt” or “conspiracy” is made an offense outside this chapter, it means attempt or conspiracy, as the case may be, as defined in this chapter.
    1. Other than as provided in subsection 4, in a prosecution under section 12.1-06-01, it is an affirmative defense that, under circumstances manifesting a voluntary and complete renunciation of criminal intent, the defendant avoided the commission of the crime attempted by abandoning any criminal effort and, if mere abandonment was insufficient to accomplish such avoidance, by taking further and affirmative steps which prevented the commission thereof.
    2. Other than as provided in subsection 4, in a prosecution under section 12.1-06-03 or 12.1-06-04, it is an affirmative defense that, under circumstances manifesting a voluntary and complete renunciation of criminal intent, the defendant prevented the commission of the crime solicited or of the crime or crimes contemplated by the conspiracy.
    3. A renunciation is not “voluntary and complete” within the meaning of this section if it is motivated in whole or in part by (1) a belief that a circumstance exists which increases the probability of detection or apprehension of the defendant or another participant in the criminal operation, or which makes more difficult the consummation of the crime, or (2) a decision to postpone the criminal conduct until another time or to substitute another victim, or another but similar objective.
  3. An individual is immune from prosecution under this chapter if:
    1. The individual voluntarily and completely renounced the individual’s criminal intent;
    2. The individual is a student enrolled in an elementary school, middle school, or a high school in this state or is enrolled at an institution of higher education in this state;
    3. The offense would have resulted in:
      1. Harm to another student enrolled in an elementary school, middle school, or a high school in this state;
      2. Harm to another student enrolled in an institution of higher education in this state;
      3. Harm to an employee of a school district or a nonpublic school in this state;
      4. Harm to an employee of an institution of higher education in this state; or
      5. Damage to property of a school district in this state or property of an institution of higher education in this state; and
    4. The renunciation was given to a law enforcement officer, to an administrator of a school or school district in this state, or to an official of an institution of higher education in this state before any harm to others or damage to property occurs.

Source: S.L. 1973, ch. 116, § 6; 2007, ch. 121, § 1; 2007, ch. 162, § 1.

Notes to Decisions

Uniform Controlled Substances Act.

The conspiracy provisions of N.D.C.C. 12.1-06-04 and this section apply to the Uniform Controlled Substances Act, N.D.C.C. ch. 19-03.1. State v. Coutts, 364 N.W.2d 88, 1985 N.D. LEXIS 270 (N.D. 1985).

CHAPTER 12.1-06.1 Racketeer Influenced and Corrupt Organizations

12.1-06.1-01. Definitions.

  1. For the purpose of section 12.1-06.1-02:
    1. “Combination” means persons who collaborate in carrying on or furthering the activities or purposes of a criminal association even though those persons may not know each other’s identity or membership in the combination may change from time to time or one or more members may stand in a wholesaler-retailer or other arm’s-length relationship with others as to activities or dealings between or among themselves in an illicit operation.
    2. “Criminal association” means any combination of persons or enterprises engaging, or having the purpose of engaging, on a continuing basis in conduct which violates any one or more provisions of any felony statute of this state or which is the willful and illegal transportation or disposal of radioactive waste material or hazardous waste.
  2. For the purposes of sections 12.1-06.1-02 through 12.1-06.1-07, unless the context otherwise requires:
    1. “Control” means the possession of a sufficient interest to permit substantial direction over the affairs of an enterprise.
    2. “Enterprise” means any corporation, limited liability company, association, labor union, or other legal entity or any group of persons associated in fact although not a legal entity.
    3. “Financial institution” means any bank, trust company, savings and loan association, credit union, or moneylender under the jurisdiction of the state department of financial institutions or its commissioner, or the state banking board, or the state credit union board.
    4. “Illegal transportation or disposal of radioactive waste material or hazardous waste” means the transportation or disposal into a nonhazardous waste landfill or the intentional and unlawful dumping into or on any land or water of radioactive waste material in violation of chapter 38-23 or the rules adopted pursuant to that chapter, or hazardous waste in willful violation of chapter 23.1-04 or the rules adopted pursuant to that chapter.
    5. “Pattern of racketeering activity” requires at least two acts of racketeering activity, one of which occurred after July 8, 1987, and the last of which occurred within ten years, excluding any period of imprisonment, after the commission of a prior act of racketeering activity.
    6. “Racketeering” means any act including any criminal attempt, facilitation, solicitation, or conspiracy, committed for financial gain, which is chargeable or indictable under the laws of the state in which the act occurred and, if the act occurred in a state other than this state, would be chargeable or indictable under the laws of this state had the act occurred in this state and punishable by imprisonment for more than one year, regardless of whether such act is charged or indicted, involving:
      1. Homicide.
      2. Robbery.
      3. Kidnapping.
      4. Forgery.
      5. Theft.
      6. Bribery.
      7. Gambling.
      8. Usury.
      9. Extortion.
      10. Unlawful delivery of controlled substances.
      11. Trafficking in explosives, weapons, or stolen property.
      12. Leading a criminal association.
      13. Obstructing or hindering criminal investigations or prosecutions.
      14. Asserting false claims including, but not limited to, false claims asserted through fraud or arson.
      15. Fraud.
      16. Sale of unregistered securities or real property securities and transactions involving such securities by unregistered dealers or salesmen.
      17. Obscenity.
      18. Child pornography.
      19. Prostitution.
      20. Human trafficking.
    7. “Records” means any book, paper, writing, record, computer program, or other material.
  3. For the purposes of section 12.1-06.1-08:
    1. “Access” means to approach, instruct, communicate with, store data in, retrieve data from, or otherwise make use of any resources of a computer, computer system, or computer network.
    2. “Computer” means an electronic device which performs work using programmed instruction and which has one or more of the capabilities of storage, logic, arithmetic, communication, or memory and includes all input, output, processing, storage, software, or communication facilities that are connected or related to such a device in a system or network.
    3. “Computer network” means the interconnection of communication lines, including microwave, fiber optics, light beams, or other means of electronic or optic data communication, with a computer through remote terminals or a complex consisting of two or more interconnected computers.
    4. “Computer program” means a series of instructions or statements, in a form acceptable to a computer, which permits the functioning of a computer system in a manner designed to provide appropriate products from such computer system.
    5. “Computer software” means a set of computer programs, procedures, and associated documentation concerned with the operation of a computer system.
    6. “Computer system” means a set of related, connected, or unconnected computer equipment, devices, and software.
    7. “Financial instrument” means any credit card, debit card, or electronic fund transfer card, code, or other means of access to an account for the purpose of initiating electronic fund transfers, or any check, draft, money order, certificate of deposit, letter of credit, bill of exchange, marketable security, or any other written instrument which is transferable for value.
    8. “Property” includes financial instruments, information, electronically produced or stored data, supporting documentation, computer software, and computer programs in either machine or human readable form, and any other tangible or intangible item of value.
    9. “Services” includes computer time, data processing, storage functions, and other uses of a computer, computer system, or computer network to perform useful work.

Source: S.L. 1983, ch. 163, § 1; 1987, ch. 164, § 1; 1987, ch. 165, § 1; 1993, ch. 54, § 106; 1995, ch. 124, § 2; 1997, ch. 119, § 1; 2001, ch. 88, § 68; 2009, ch. 139, § 2; 2019, ch. 301, § 1, effective July 1, 2019; 2017, ch. 199, § 8, effective April 29, 2019.

Notes to Decisions

Dismissal Proper.

Limited liability company’s (LLC) racketeering claim was properly dismissed because the LLC’s allegations were conclusory, it did not allege any prior convictions, and the allegations were not sufficient for probable cause. McColl Farms, LLC v. Pflaum, 2013 ND 169, 837 N.W.2d 359, 2013 N.D. LEXIS 170 (N.D. 2013).

Pattern of Racketeering Activity.

To establish a cognizable Racketeer Influenced and Corrupt Organizations Act claim, plaintiff in civil action must establish two predicate acts. Burr v. Kulas, 1997 ND 98, 564 N.W.2d 631, 1997 N.D. LEXIS 114 (N.D. 1997).

Whether theft of survey instrument and computer theft under N.D.C.C. § 12.1-06.1-08 amounted to a pattern of racketeering activity, under the Racketeer Influenced and Corrupt Organizations Act, was a question of fact, precluding summary judgment in civil action. Burr v. Kulas, 1997 ND 98, 564 N.W.2d 631, 1997 N.D. LEXIS 114 (N.D. 1997).

Civil RICO claim against a bankruptcy debtor “as permitted under North Dakota’s RICO Act” which did not set forth the two predicate criminal acts required by the Act failed to satisfy the pleading requirements for a RICO claim. E.W. Wylie Corp. v. Montgomery (In re Montgomery), 236 B.R. 914, 1999 Bankr. LEXIS 992 (Bankr. D.N.D. 1999).

In plaintiff’s action against defendants under state and federal RICO statutes arising out of a child custody dispute and claims that defendants assisted his wife in absconding out of state with their children, plaintiff met the standing elements under both state and federal RICO statutes by alleging out-of-pocket expenses incurred as a direct result of the ordeal in the form of travel, lodging, telephone calls, food, and attorneys fees, which were arguably considered injury to business or property by the weight of authority. However, plaintiff failed to establish the essential elements of a RICO claim under either federal or state law where, although he alleged predicate acts that might have qualified under the state act, there were no convictions against the defendants for the predicate acts, plaintiff failed to establish probable cause that the predicate acts occurred and, even if he did, he failed to show continuity of the acts and failed to show future criminal threat. Geraci v. Women's Alliance, Inc., 436 F. Supp. 2d 1022, 2006 U.S. Dist. LEXIS 45606 (D.N.D. 2006).

Collateral References.

Criminal liability of corporation for extortion, false pretenses or similar offenses, 49 A.L.R.3d 820.

Validity of Criminal State Racketeer Influenced and Corrupt Organizations Acts and Similar Acts Related to Gang Activity and the Like. 58 A.L.R.6th 385.

What constitutes “property” obtained within extortion statute, 67 A.L.R.3d 1021.

Criminal prosecutions under state RICO statutes for engaging in organized criminal activity, 89 A.L.R.5th 629.

Validity, construction, and application of Racketeer Influenced and Corrupt Organization Act, 18 U.S.C.A. §§ 1961 et seq. — Supreme Court cases, 171 A.L.R. Fed. 1.

12.1-06.1-02. Leading a criminal association — Classification.

  1. A person is guilty of an offense by any of the following:
    1. Intentionally organizing, managing, directing, supervising, or financing a criminal association.
    2. Knowingly inciting or inducing others to engage in violence or intimidation to promote or further the criminal objectives of a criminal association.
    3. Willfully furnishing advice, assistance, or direction in the conduct, financing, or management of a criminal association’s affairs with the intent to promote or further the criminal objectives of a criminal association.
    4. Intentionally promoting or furthering the criminal objectives of a criminal association by inducing or committing any act or omission by a public servant in violation of official duty.
  2. No person shall be convicted pursuant to this section on the basis of accountability as an accomplice unless that person aids or participates in violating this section in one of the ways specified.
  3. Leading a criminal association is a class B felony.

Source: S.L. 1983, ch. 163, § 2; 1995, ch. 124, § 3; 1997, ch. 119, § 2.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Collateral References.

Validity of Criminal State Racketeer Influenced and Corrupt Organizations Acts and Similar Acts Related to Gang Activity and the Like. 58 A.L.R.6th 385.

Notes to Decisions

Evidence Sufficient.

Evidence was sufficient to support convictions for leading a criminal association to commit felonious acts and conspiracy to commit aggravated assault where there was testimony during the trial of defendant supplying drugs to individuals for sale and offering a reward for kicking a victim's teeth in. State v. Owens, 2015 ND 68, 860 N.W.2d 817, 2015 N.D. LEXIS 66 (N.D. 2015).

12.1-06.1-03. Illegal control of an enterprise — Illegally conducting an enterprise.

  1. A person is guilty of an offense if such person, through a pattern of racketeering activity or its proceeds, acquires or maintains, by investment or otherwise, control of any enterprise.
  2. A person is guilty of an offense if the person is employed or associated with any enterprise and conducts or participates in the conduct of that enterprise’s affairs through a pattern of racketeering activity.
  3. A knowing violation of this section is a class B felony.

Source: S.L. 1983, ch. 163, § 3; 1987, ch. 165, § 2; 1995, ch. 124, § 4.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Notes to Decisions

Conviction Is Aggravated Felony for Immigration Purposes.

Petitioner alien’s N.D.C.C. § 12.1-06.1-03 racketeering conviction was an aggravated felony under 8 U.S.C.S. § 1101(a)(43)(J) because the interstate commerce element of its federal counterpart was merely a jurisdictional basis not essential to whether a state crime was an aggravated felony; he was not eligible for an 8 U.S.C.S. § 1229b(a)(3) cancellation of removal. Spacek v. Holder, 688 F.3d 536, 2012 U.S. App. LEXIS 15742 (8th Cir. 2012).

Collateral References.

Validity of Criminal State Racketeer Influenced and Corrupt Organizations Acts and Similar Acts Related to Gang Activity and the Like. 58 A.L.R.6th 385.

12.1-06.1-04. Judicial powers over racketeering criminal cases.

During the pendency of any criminal case charging an offense included in the definition of racketeering if it is shown to the satisfaction of the court when ruling upon the application for the order that the racketeering offense has occurred as a part of a pattern of racketeering activity or a violation of section 12.1-06.1-02 or 12.1-06.1-03, the court may, in addition to its other powers, issue an order pursuant to subsections 1 and 2 of section 12.1-06.1-05. Upon conviction of a person for an offense included in the definition of racketeering if it is shown to the satisfaction of the court when ruling upon the application for the order that the racketeering offense has occurred as a part of a pattern of racketeering activity or a violation of section 12.1-06.1-02 or 12.1-06.1-03, the court may, in addition to its other powers, issue an order pursuant to section 12.1-06.1-05.

Source: S.L. 1983, ch. 163, § 4; 1987, ch. 165, § 3; 1997, ch. 119, § 3.

12.1-06.1-05. Racketeering — Civil remedies.

  1. A person who sustains injury to person, business, or property by a pattern of racketeering activity or by a violation of section 12.1-06.1-02 or 12.1-06.1-03 may file an action in district court for the recovery of treble damages and the costs of the suit, including reasonable attorney fees. The state may file an action in behalf of those persons injured or to prevent, restrain, or remedy a pattern of racketeering activity or a violation of section 12.1-06.1-02 or 12.1-06.1-03.
  2. The district court has jurisdiction to prevent, restrain, and remedy a pattern of racketeering activity or a violation of section 12.1-06.1-02 or 12.1-06.1-03 after making provision for the rights of all innocent persons affected by the violation and after hearing or trial, as appropriate, by issuing appropriate orders.
  3. Prior to a determination of liability, orders may include entering restraining orders, receivership orders or prohibitions or other actions, including the acceptance of satisfactory performance bonds, in connection with any property or other interest subject to damages, forfeiture, or other restraints pursuant to this section.
  4. Following a determination of liability, orders may include:
    1. Ordering any person to divest himself of any interests, direct or indirect, in any enterprise.
    2. Imposing reasonable restrictions on the future activities or investments of any person, including prohibiting any person from engaging in the same type of endeavor as the enterprise engaged in, the activities of which affect the laws of this state, to the extent the constitutions of the United States and this state permit.
    3. Ordering dissolution or reorganization of any enterprise.
    4. Ordering the payment of treble damages and appropriate restitution to those persons injured by a pattern of racketeering activity or a violation of section 12.1-06.1-02 or 12.1-06.1-03.
    5. Ordering the payment of all costs and expenses and reasonable attorneys’ fees concerned with the prosecution and investigation of any offense included in the definition of racketeering if upon application for the order it is shown to the satisfaction of the court that the racketeering offense has occurred as a part of a pattern of racketeering activity or a violation of section 12.1-06.1-02 or 12.1-06.1-03, civil and criminal, incurred by the state or county as appropriate to be paid to the general fund of the state or county that brings the action.
    6. Forfeiture, pursuant to chapter 32-14, to the state school fund of the state or county as appropriate under section 29-27-02.1, to the extent not already ordered to be paid in other damages:
      1. Any property or other interest acquired or maintained by a person in violation of section 12.1-06.1-02 or 12.1-06.1-03.
      2. Any interest in, security of, claims against, or property or contractual right of any kind affording a source of influence over any enterprise that a person has established, operated, controlled, conducted, or participated in the conduct of in violation of section 12.1-06.1-02 or 12.1-06.1-03.
      3. All proceeds traceable to an offense included in the definition of racketeering and all moneys, negotiable instruments, securities, and other things of value used or intended to be used to facilitate commission of the offense if upon application for the order it is shown to the satisfaction of the court that the racketeering offense has occurred as a part of a pattern of racketeering activity.
    7. Payment to the state school fund of the state or county as appropriate under section 29-27-02.1 of an amount equal to the gain a person has acquired or maintained through an offense included in the definition of racketeering if upon application for the order it is shown to the satisfaction of the court that the racketeering offense has occurred as a part of a pattern of racketeering activity.
  5. In addition to or in lieu of an action under this section the state may file an action for forfeiture to the state school fund of the state or county as appropriate under section 29-27-02.1, to the extent not already ordered paid pursuant to this section, of:
    1. Any interest acquired or maintained by a person in violation of section 12.1-06.1-02 or 12.1-06.1-03.
    2. Any interest in, security of, claims against, or property or contractual right of any kind affording a source of influence over any enterprise that a person has established, operated, controlled, conducted, or participated in the conduct of in violation of section 12.1-06.1-02 or 12.1-06.1-03.
    3. All proceeds traceable to an offense included in the definition of racketeering and all moneys, negotiable instruments, securities, and other things of value used or intended to be used to facilitate the commission of the offense if upon application for the order it is shown to the satisfaction of the court that such racketeering offense has occurred as a part of a pattern of racketeering activity.
  6. A defendant convicted in any criminal proceeding shall be precluded from subsequently denying the essential allegations of the criminal offense of which he was convicted in any civil proceeding. For purposes of this subsection, a conviction may result from a verdict or plea including a no contest plea.
  7. Notwithstanding any law to the contrary, the initiation of civil proceedings related to violations of any offense included in the definition of racketeering or a violation of section 12.1-06.1-02 or 12.1-06.1-03 must be commenced within seven years of actual discovery of the violation.
  8. This state may, in a civil action brought pursuant to this section, file with the clerk of the district court a certificate stating that the case is of special public importance. A copy of that certificate shall be furnished immediately by the clerk to the presiding judge of the district court in which the action is pending and, upon receipt of the copy, the judge shall immediately designate a judge to hear and determine the action. The judge designated shall promptly assign the action for hearing, participate in the hearings and determination, and cause the action to be expedited.
  9. The standard of proof in actions brought pursuant to this section is the preponderance of the evidence.
  10. A person other than the attorney general or state’s attorney who files an action under this section shall serve notice and one copy of the pleading on the attorney general within thirty days after the action is filed with the district court. The notice shall identify the action, the person, and the person’s attorney. Service of the notice does not limit or otherwise affect the right of the state to maintain an action under this section or intervene in a pending action nor does it authorize the person to name the state or the attorney general as a party to the action.
  11. Except in cases filed by a state’s attorney, the attorney general may, upon timely application, intervene in any civil action or proceeding brought pursuant to this section if the attorney general certifies that in his opinion the action is of special public importance. Upon intervention, the attorney general may assert any available claim and is entitled to the same relief as if the attorney general had instituted a separate action.
  12. In addition to the state’s right to intervene as a party in any action under this section, the attorney general may appear as amicus curiae in any proceeding in which a claim under this section has been asserted or in which a court is interpreting any provisions of this chapter.
  13. A civil action under this section is remedial and does not limit any other civil or criminal action. Civil remedies provided under this section are supplemental and not mutually exclusive.

Source: S.L. 1983, ch. 163, § 5; 1987, ch. 165, § 4; 1997, ch. 119, § 4.

Notes to Decisions

Complaint.

Defendants’ contention they did not commit theft or use plaintiff’s material improperly would not sustain summary judgment on claim alleging violation of Racketeer Influenced and Corrupt Organization Act (RICO); they had to present evidence demonstrating why complaint did not state a predicate act under RICO. Burr v. Kulas, 1997 ND 98, 564 N.W.2d 631, 1997 N.D. LEXIS 114 (N.D. 1997).

Complaint Insufficient.

Where a complaint did not plead dates, times, and places of fraudulent statements, characterized some events as criminal, but did not allege any relevant convictions or probable cause, the complaint did not plead criminal activity with the particularity required to support a Racketeer and Corrupt Organizations Act (RICO) claim. Rolin Mfg. v. Mosbrucker, 544 N.W.2d 132, 1996 N.D. LEXIS 48 (N.D. 1996).

Limited liability company’s (LLC) racketeering claim was properly dismissed because the LLC’s allegations were conclusory, it did not allege any prior convictions, and the allegations were not sufficient for probable cause. McColl Farms, LLC v. Pflaum, 2013 ND 169, 837 N.W.2d 359, 2013 N.D. LEXIS 170 (N.D. 2013).

Independent contractor failed to state a claim against a package delivery company because the contractor did not sufficiently allege two predicate acts of racketeering activity; the contractor failed to sufficiently plead facts supporting claims of fraud and violation of the North Dakota Franchise Investment Law. Neubauer v. FedEx Corp., 849 F.3d 400, 2017 U.S. App. LEXIS 2788 (8th Cir. N.D. 2017).

Statute of Limitations.

Three year statute of limitations under N.D.C.C. § 28-01-22.1 applies only when no other period is specified; therefore, whether seven year statute of limitations under this section for violations of the Racketeer Influenced and Corrupt Organization Act (RICO) applied depended on whether plaintiff demonstrated state employee’s conduct amounted to a pattern of racketeering activity, under RICO. Burr v. Kulas, 1997 ND 98, 564 N.W.2d 631, 1997 N.D. LEXIS 114 (N.D. 1997).

Collateral References.

Civil action for damages under state Racketeer Influenced and Corrupt Organizations Acts (RICO) for losses from racketeering activity, 62 A.L.R.4th 654.

Law Reviews.

Racketeer Influence and Corrupt Organizations Act — Civil Rico: Stating A Claim in North Dakota, 73 N.D. L. Rev. 741 (1997).

12.1-06.1-06. Racketeering lien — Content — Filing — Notice — Effect.

  1. The state, upon filing a civil action under section 12.1-06.1-05 or upon charging an offense included in the definition of racketeering if the offense is committed as a part of a pattern of racketeering activity or a violation of section 12.1-06.1-02 or 12.1-06.1-03, may file a racketeering lien. A filing fee or other charge is not required for filing a racketeering lien.
  2. A racketeering lien shall be signed by the attorney general or the state’s attorney representing the state in the action and set forth the following information:
    1. The name of the defendant whose property, interests in property, or other interests are to be subject to the lien.
    2. In the discretion of the attorney general or state’s attorney filing the lien, any aliases or fictitious names of the defendant named in the lien.
    3. If known to the attorney general or state’s attorney filing the lien, the present residence or principal place of business of the person named in the lien.
    4. A reference to the proceeding pursuant to which the lien is filed, including the name of the court, the title of the action, and the court’s file number for the proceeding.
    5. The name and address of the attorney representing the state in the proceeding pursuant to which the lien is filed.
    6. A statement that the notice is being filed pursuant to this section.
    7. The amount which the state claims in the action or, with respect to property or other interests which the state has requested forfeiture to the state or county, a description of the property or interests sought to be paid or forfeited.
    8. If known to the attorney general or state’s attorney filing the lien, a description of property which is subject to forfeiture to the state or property in which the defendant has an interest which is available to satisfy a judgment entered in favor of the state.
    9. Such other information as the attorney general or state’s attorney filing the lien deems appropriate.
  3. The attorney general or the state’s attorney filing the lien may amend a lien filed under this section at any time by filing an amended racketeering lien in accordance with this section which identifies the prior lien amended.
  4. The attorney general or the state’s attorney filing the lien shall, as soon as practical after filing a racketeering lien, furnish to any person named in the lien a notice of the filing of the lien. Failure to furnish notice under this subsection does not invalidate or otherwise affect a racketeering lien filed in accordance with this section.
  5. A racketeering lien is perfected against interests in personal property by filing the lien with the secretary of state, except that in the case of titled motor vehicles it shall be filed with the director of the department of transportation. A racketeering lien is perfected against interests in real property by filing the lien with the county recorder of the county in which the real property is located. The state may give additional notice of the lien.
  6. The filing of a racketeering lien in accordance with this section creates a lien in favor of the state in:
    1. Any interest of the defendant in real property situated in the county in which the lien is filed, then maintained or later acquired in the name of the defendant identified in the lien.
    2. Any interest of the defendant in personal property situated in this state, then maintained or later acquired in the name of the defendant identified in the lien.
    3. Any property identified in the lien to the extent of the defendant’s interest in the property.
  7. The filing of a racketeering lien under this section is notice to all persons dealing with the person or property identified in the lien of the state’s claim. The lien created in favor of the state in accordance with this section is superior and prior to the claims or interests of any other person, except a person possessing:
    1. A valid lien perfected prior to the filing of the racketeering lien.
    2. In the case of real property, an interest acquired and recorded prior to the filing of the racketeering lien.
    3. In the case of personal property, an interest acquired prior to the filing of the racketeering lien.
  8. Upon entry of judgment in favor of the state, the state may proceed to execute the judgment as in the case of any other judgment, except that in order to preserve the state’s lien priority as provided in this section the state shall, in addition to notice as required by law, give at least thirty days’ notice of execution to any person possessing at the time notice is given, an interest recorded after the date the state’s lien was perfected.
  9. Upon the entry of a final judgment in favor of the state providing for forfeiture of property to the state, the title of the state to the property:
    1. In the case of real property, or a beneficial interest in real property, relates back to the date of filing the racketeering lien with the county recorder of the county where the real property is located, or if no racketeering lien is filed, then to the date of recording of the final judgment with the county recorder of the county where the real property is located.
    2. In the case of personal property or a beneficial interest in personal property, relates back to the date the personal property was seized by the state, or the date of filing of a racketeering lien in accordance with this section, whichever is earlier, but if the property was not seized and no racketeering lien was filed then to the date the final judgment was filed with the secretary of state, or in the case of a titled motor vehicle, with the director of the department of transportation.
  10. This section does not limit the right of the state to obtain any order or injunction, receivership, writ, attachment, garnishment, or other remedy authorized under section 12.1-06.1-05 or available under other applicable law.

Source: S.L. 1983, ch. 163, § 6; 1987, ch. 165, § 5; 1997, ch. 119, § 5; 2001, ch. 120, § 1.

12.1-06.1-07. Racketeering — Investigation of records — Confidentiality — Court enforcement — Classification.

  1. A custodian of the records of a financial institution shall, at no expense to the financial institution, produce for inspection or copying the records in the custody of the financial institution when requested to be inspected by the attorney general or a state’s attorney authorized by the attorney general, if the person requesting the information signs and submits a sworn statement to the custodian that the request is made to investigate a pattern of racketeering activity or a violation of section 12.1-06.1-02 or 12.1-06.1-03. Records may be removed from the premises of the financial institution only for the purpose of copying the records and must be returned within forty-eight hours. The attorney general or an authorized state’s attorney or any peace officer designated by an authorized state’s attorney or the attorney general may not use or release the information except in the proper discharge of official duties. The furnishing of records in compliance with this section by a custodian of records is a bar to civil or criminal liability against the custodian or financial institution in any action brought alleging violation of the confidentiality of the records. The fact that records have been obtained may not be released in any way by the financial institution until ninety days after the release.
  2. The attorney general or the authorized state’s attorney may petition the district court for enforcement of this section upon noncompliance with the request for inspection. Enforcement must be granted if the request is reasonable and the attorney general or the authorized state’s attorney has reasonable grounds to believe the records sought to be inspected are relevant to a civil or criminal investigation of a pattern of racketeering activity or a violation of section 12.1-06.1-02 or 12.1-06.1-03.
  3. The investigation authority granted pursuant to the provisions of this section may not be exercised by a state’s attorney in the absence of authorization by the attorney general.
  4. Any person releasing information obtained pursuant to this section, except in the proper discharge of official duties, is guilty of a class B misdemeanor.

Source: S.L. 1983, ch. 163, § 7; 1987, ch. 165, § 6; 1997, ch. 119, § 6.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

12.1-06.1-08. Computer fraud — Computer crime — Classification — Penalty.

  1. A person commits computer fraud by gaining or attempting to gain access to, altering, damaging, modifying, copying, disclosing, taking possession of, or destroying any computer, computer system, computer network, or any part of the computer, computer system, or computer network, without authorization, and with the intent to devise or execute any scheme or artifice to defraud, deceive, prevent the authorized use of, or control property or services by means of false or fraudulent pretenses, representations, or promises. A person who commits computer fraud is guilty of a class C felony.
  2. A person commits computer crime by intentionally and either in excess of authorization given or without authorization gaining or attempting to gain access to, altering, damaging, modifying, copying, disclosing, taking possession of, introducing a computer contaminant into, destroying, or preventing the authorized use of any computer, computer system, or computer network, or any computer software, program, or data contained in the computer, computer system, or computer network. A person who commits computer crime is guilty of a class A misdemeanor.
  3. In addition to any other remedy available, the owner or lessee of a computer, computer system, computer network, or any part of the computer, computer system, or computer network may bring a civil action for damages, restitution, and attorney’s fees for damages incurred as a result of the violation of this section.

Source: S.L. 1983, ch. 163, § 8; 1987, ch. 164, § 2; 2003, ch. 104, § 1.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Notes to Decisions

Question of Fact.

Whether theft of survey instrument and computer theft under this section amounted to a pattern of racketeering activity, under the Racketeer Influenced and Corrupt Organization Act, was a question of fact, precluding summary judgment in civil action. Burr v. Kulas, 1997 ND 98, 564 N.W.2d 631, 1997 N.D. LEXIS 114 (N.D. 1997).

Collateral References.

Criminal liability for theft of, interference with, or unauthorized use of, computer programs, files, or systems, 51 A.L.R.4th 971.

What is computer “trade secret” under state law, 53 A.L.R.4th 1046.

Computer fraud, 70 A.L.R.5th 647.

Validity, construction, and application of state computer crime and fraud laws, 87 A.L.R.6th 1.

CHAPTER 12.1-06.2 Criminal Street Gangs

12.1-06.2-01. Definitions.

As used in this chapter, the term:

  1. “Crime of pecuniary gain” means any violation of state law that directly results or was intended to result in the defendant alone, or in association with others, receiving income, benefit, property, money, or anything of value.
  2. “Crime of violence” means any violation of state law where a person purposely or knowingly causes or threatens to cause death or physical bodily injury to another person or persons.
  3. “Criminal street gang” means any ongoing organization or group of three or more persons, whether formal or informal, that acts in concert or agrees to act in concert with a purpose that any of those persons alone or in any combination commit or will commit two or more predicate gang crimes one of which occurs after August 1, 1995, and the last of which occurred within five years after the commission of a prior predicate gang crime.
  4. “Participate in a criminal street gang” means to act in concert with a criminal street gang with intent to commit or with the intent that any other person associated with the criminal street gang will commit one or more predicate gang crimes.
  5. “Predicate gang crime” means the commission, attempted commission, or solicitation of any felony, misdemeanor crime of violence, or misdemeanor crime of pecuniary gain.

Source: S.L. 1995, ch. 124, § 1.

12.1-06.2-02. Criminal street gang crime — Penalty.

Any person who commits a felony or class A misdemeanor crime of violence or crime of pecuniary gain for the benefit of, at the direction of, or in association with any criminal street gang, with the intent to promote, further, or assist in the affairs of a criminal gang, or obtain membership into a criminal gang, is guilty of a class C felony.

Source: S.L. 1995, ch. 124, § 1.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Notes to Decisions

Right to Fair Trial.

Defendant was not denied fair trial by state charging him with street-gang crime and moving to have that charge dismissed at the end of its case-in-chief, where defendant did not show street-gang charge was a bad faith contrivance by state’s attorney. State v. Garcia, 1997 ND 60, 561 N.W.2d 599, 1997 N.D. LEXIS 45 (N.D.), cert. denied, 522 U.S. 874, 118 S. Ct. 193, 139 L. Ed. 2d 131, 1997 U.S. LEXIS 5532 (U.S. 1997).

12.1-06.2-03. Encouraging minors to participate in criminal street gang — Penalty.

  1. Any person eighteen years of age or older who knowingly or willfully causes, aids, abets, encourages, solicits, or recruits a person under the age of eighteen years to participate in a criminal street gang is upon conviction guilty of a class C felony.
  2. Nothing in this section may be construed to limit prosecution under any other provision of law.

Source: S.L. 1995, ch. 124, § 1.

12.1-06.2-04. Local ordinances not preempted.

Nothing in this chapter may be construed as preventing a local governing body from adopting and enforcing ordinances relating to gangs and gang-related violence.

Source: S.L. 1995, ch. 124, § 1.

CHAPTER 12.1-07 Treason — Flag Desecration

12.1-07-01. Treason.

Treason as defined in section 17 of article I of the Constitution of North Dakota is a class A felony.

Source: S.L. 1973, ch. 116, § 7.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Constitutional provision defining treason, see N.D. Const., Art. I, § 17.

Overt act without state, jurisdiction, see N.D.C.C. § 29-03-11.

12.1-07-02. Desecration of the flag of the United States.

  1. A person is guilty of a class A misdemeanor if he knowingly casts contempt upon any flag of the United States by publicly mutilating, defacing, defiling, burning, or trampling upon it.
  2. The term “flag of the United States” as used in this section shall include any flag, standard, colors, or ensign, or any picture or representation of either, or of any part or parts of either, made of any substance or represented on any substance, of any size evidently purporting to be either of said flag, standard, colors, or ensign of the United States of America, or a picture or a representation of either, upon which shall be shown the colors, the stars and the stripes, in any number of either thereof, or of any part or parts of either, by which the average person seeing the same without deliberation may believe the same to represent the flag, standard, colors, or ensign of the United States of America.

Source: S.L. 1973, ch. 116, § 7.

Note.

The validity, under the federal Constitution, of a similar Nebraska act providing for the protection of the national flag against illegitimate uses was upheld in Halter v. Nebraska, 205 U.S 34, 51 L.Ed 696, 27 S. Ct. 419 (1907).

Cross-References.

Penalty for class A misdemeanor, see N.D.C.C. § 12.1-32-01.

DECISIONS UNDER PRIOR LAW

Similar Flag.

Flag similar to United States flag except for peace symbol instead of stars in the upper left corner on blue field was never a United States flag and could not be subject of flag desecration. State v. Nicola, 182 N.W.2d 870, 1971 N.D. LEXIS 151 (N.D. 1971).

Collateral References.

Flag desecration statutes, what constitutes violation of, 41 A.L.R.3d 502.

Validity, and Standing to Challenge Validity, of State Statute Prohibiting Flag Desecration and Misuse, 31 A.L.R.6th 333.

12.1-07-03. Carrying in parade or the display of certain flags, ensigns, banners, and standards prohibited.

No flag of any nation, state, country, or territory other than the flag of the United States or a state flag, or the flag of a friendly foreign nation, or the dependencies of such nations, shall be:

  1. Carried in parade on any public street or highway within this state.
  2. Exhibited in any hall or public place.
  3. Displayed or exhibited:
    1. On any vehicle.
    2. On any building or premises.
    3. In any other manner in public within the state.

Source: S.L. 1975, ch. 117, § 1.

Notes to Decisions

Constitutionality.

This section is in contravention of the First and Fourteenth Amendments to the United States Constitution and is unconstitutional on its face. Altevogt v. Sinner, Civil No. A4-88-072 (D.N.D. 1988).

Collateral References.

Validity, construction, and application of state or local enactments regulating parades, 80 A.L.R.5th 255.

Validity, and Standing to Challenge Validity, of State Statute Prohibiting Flag Desecration and Misuse, 31 A.L.R.6th 333.

12.1-07-04. Red or black flags prohibited. [Repealed]

Repealed by S.L. 1981, ch. 155, § 2.

12.1-07-05. Penalty.

Any person who violates any of the provisions of section 12.1-07-03 is guilty of a class B misdemeanor.

Source: S.L. 1975, ch. 117, § 3; 1981, ch. 155, § 1.

Cross-References.

Penalty for class B misdemeanor, see N.D.C.C. § 12.1-32-01.

CHAPTER 12.1-08 Obstruction of Law Enforcement — Escape

12.1-08-01. Physical obstruction of government function.

  1. A person is guilty of a class A misdemeanor if he intentionally obstructs, impairs, impedes, hinders, prevents, or perverts the administration of law or other governmental function.
  2. This section does not apply to the conduct of a person obstructing arrest of himself, but such conduct is subject to section 12.1-08-02. This section does apply to the conduct of a person obstructing arrest of another. Inapplicability under this subsection is a defense.
  3. It is a defense to a prosecution under this section that the administration of law or other government function was not lawful, but it is no defense that the defendant mistakenly believed that the administration of law or other government function was not lawful. For the purposes of this subsection, the conduct of a public servant acting in good faith and under color of law in the execution of a warrant or other process for arrest or search and seizure shall be deemed lawful.

Source: S.L. 1973, ch. 116, § 8; 1975, ch. 116, § 5.

Cross-References.

Mistake of fact or law, see N.D.C.C. §§ 12.1-02-03, 12.1-05-09.

Penalty for class A misdemeanor, see N.D.C.C. § 12.1-32-01.

Notes to Decisions

Action Not Obstruction.

As a matter of law, defendant’s conduct in asking the officer why people were being arrested, without more, did not constitute physical obstruction of a public officer in the discharge of his duty. City of Grand Forks v. Cameron, 435 N.W.2d 700, 1989 N.D. LEXIS 30 (N.D. 1989).

Applicability.

While this statute does not apply to the conduct of a person obstructing arrest of himself, it does apply to the conduct of a person obstructing arrest of another. State v. Purdy, 491 N.W.2d 402, 1992 N.D. LEXIS 195 (N.D. 1992).

Elements of Offense.

Although the use of direct force or physical violence may not be required to constitute the offense of physical obstruction of a government function, some overt act is required. State v. Purdy, 491 N.W.2d 402, 1992 N.D. LEXIS 195 (N.D. 1992).

Photographic evidence of defendant linking arms with others when law enforcement officers were arresting individuals grouped together at a skirmish line was sufficient to sustain his ND.C.C. § 12.1-08-01 conviction. State v. Simon, 2018 ND 197, 916 N.W.2d 626, 2018 N.D. LEXIS 214 (N.D. 2018).

Jury Instruction.

Jury instruction held sufficient to support conviction for physical obstruction of a governmental function. State v. Rott, 380 N.W.2d 325, 1986 N.D. LEXIS 238 (N.D. 1986).

Refusal to Leave.

One’s refusal to leave after being instructed by an officer to do so may constitute obstruction. City of Grand Forks v. Cameron, 435 N.W.2d 700, 1989 N.D. LEXIS 30 (N.D. 1989).

Substantial Stoppage.

Section does not require a substantial stoppage of the officer’s progress for a violation to have been committed. State v. Rott, 380 N.W.2d 325, 1986 N.D. LEXIS 238 (N.D. 1986).

Collateral References.

Criminal liability for obstructing process as affected by invalidity or irregularity of the process, 10 A.L.R.3d 1146.

When statute of limitations begins to run on charge of obstructing justice or of conspiring to do so, 77 A.L.R.3d 725.

Defenses to state obstruction of justice charge relating to interfering with criminal investigation or judicial proceeding, 87 A.L.R.5th 597.

Criminal and civil liability of civilians and police officers concerning recording of police actions, 84 A.L.R.6th 89.

Law Reviews.

Summary of significant decisions rendered by the North Dakota Supreme Court in 1990 relating to criminal law, 66 N.D. L. Rev. 753 (1990).

“A Comparison of Drinking and Driving Law in Norway and North Dakota: More Than a Difference in Penalties,” 76 N.D. L. Rev. 33 (2000).

12.1-08-02. Preventing arrest or discharge of other duties.

  1. A person is guilty of a class A misdemeanor if, with intent to prevent a public servant from effecting an arrest of himself or another for a misdemeanor or infraction, or from discharging any other official duty, he creates a substantial risk of bodily injury to the public servant or to anyone except himself, or employs means justifying or requiring substantial force to overcome resistance to effecting the arrest or the discharge of the duty. A person is guilty of a class C felony if, with intent to prevent a public servant from effecting an arrest of himself or another for a class A, B, or C felony, he creates a substantial risk of bodily injury to the public servant or to anyone except himself, or employs means justifying or requiring substantial force to overcome resistance to effecting such an arrest.
  2. It is a defense to a prosecution under this section that the public servant was not acting lawfully, but it is no defense that the defendant mistakenly believed that the public servant was not acting lawfully. A public servant executing a warrant or other process in good faith and under color of law shall be deemed to be acting lawfully.

Source: S.L. 1973, ch. 116, § 8; 1975, ch. 116, § 6.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Mistake of law or fact, see N.D.C.C. §§ 12.1-02-03, 12.1-05-09.

Notes to Decisions

Evidence.
—Derived From Unlawful Conduct.

Although traditionally the remedy for constitutional violations has been exclusion of the evidence derived from the unlawful conduct, the remedy for unlawful official conduct in a preventing-arrest case is to permit the defendant to raise the factual defense of unlawfulness. State v. Cox, 532 N.W.2d 384, 1995 N.D. LEXIS 103 (N.D. 1995).

—Held Sufficient.

Defendant intended to prevent a public servant from effecting an arrest and thereby created a substantial risk of bodily injury to the public servant or to anyone except himself where he struggled with police officers, injuring one’s thumb, and attempted to kick the officers. State v. Hondl, 506 N.W.2d 404, 1993 N.D. LEXIS 181 (N.D. 1993).

Evidence was sufficient to convict defendant of preventing arrest or discharge of other duties where defendant created a substantial risk of bodily injury to the sheriff and “substantial force” was required to overcome defendant’s resistance to effecting the arrest and the sheriff was acting lawfully when he arrested defendant. Defendant swung at the sheriff one or two times and when the sheriff told defendant he was placing him under arrest, defendant put up both fists and swung and grazed the side of the sheriff’s face, and, after wrestling defendant to the ground he was trying to kick the sheriff. State v. Barth, 2005 ND 134, 702 N.W.2d 1, 2005 N.D. LEXIS 169 (N.D. 2005).

Actual or imminent physical combat between an officer and a defendant is not required before charges under N.D.C.C. § 12.1-08-02 are sustainable; therefore, defendant was properly convicted of preventing arrest or discharge of other duties under N.D.C.C. § 12.1-08-02(1) when he physically resisted handcuffing during the issuance of a citation. State v. Brossart, 2007 ND 39, 729 N.W.2d 137, 2007 N.D. LEXIS 40 (N.D. 2007).

Sufficient evidence existed to support defendant’s conviction for resisting arrest under N.D.C.C. § 12.1-08-02(1) because (1) an arresting officer testified that he thought the arrest occurred after he removed defendant from defendant’s vehicle and held defendant at the hood of the patrol car; (2) the officer testified that while attempting to place defendant in his patrol car, he had to call for the help of another police officer because defendant would not climb into the back seat of the patrol car until both officers used physical force to place him there; and (3) the officer’s testimony allowed a reasonable factfinder to determine guilt for resisting arrest. State v. Skarsgard, 2008 ND 31, 745 N.W.2d 358, 2008 N.D. LEXIS 32 (N.D. 2008).

Defendant was properly convicted of simple assault on a peace officer, fleeing or attempting to elude a peace officer, and preventing arrest because he was given a visual signal to stop when a detective activated his emergency lights and, while the emergency lights were still on and without any indication the detective had released him, defendant drove away and when the detective another officer later encountered defendant at a storage unit, defendant shoved the detective into a storage unit door, closed his car door on the detective’s arm, and kicked the other officer in the chest and chin, causing both officers pain. State v. Hamre, 2019 ND 86, 924 N.W.2d 776, 2019 N.D. LEXIS 85 (N.D. 2019).

Defendant’s conviction for class A misdemeanor engaging in a riot was not supported by substantial evidence because defendant’s act of locking arms and resisting arrest with other protesters did not rise to the commonly understood definition of violence; it was law enforcement that was required to use force to overcome the protesters’ non-compliance, and the situation was more akin to preventing arrest or discharge of other duties. State v. Bearrunner, 2019 ND 29, 921 N.W.2d 894, 2019 N.D. LEXIS 29 (N.D. 2019).

District court did not err in applying the four-level enhancement because there was preponderance of the evidence that the defendant possessed the firearm “in connection with” the felony-level preventing arrest conduct as defendant engaged in the felony-level offensive conduct precisely because the firearm had a round chambered and was somewhere in his pants during the struggle with law enforcement and the conduct alone posed a substantial risk of misfire and potential injury to the officers. United States v. Nilsen, — F.3d —, 18 F.4th 587, 2021 U.S. App. LEXIS 34387 (8th Cir. N.D. 2021).

Execution of Warrant.

Officers were acting lawfully under N.D.C.C. §§ 29-06-02 and 12.1-08-02(2) when executing a federal arrest warrant, and defendant made no contrary showing. Therefore, the contraband yielded was admissible against defendant because it was found in a search incident to a valid arrest. State v. Proell, 2007 ND 17, 726 N.W.2d 591, 2007 N.D. LEXIS 11 (N.D. 2007).

Factual Defenses.
—Pretrial Proceedings.

Although there are factual defenses to this charge for unlawful official conduct, pretrial proceedings are not the appropriate stage to resolve fact issues regarding guilt or innocence. State v. DuPaul, 509 N.W.2d 266, 1993 N.D. LEXIS 232 (N.D. 1993).

Failure to Stop Automobile.

When a police officer turns on his flashing red lights it constitutes a directive for the driver to pull over. The driver who does not stop has committed a crime. State v. Indvik, 382 N.W.2d 623, 1986 N.D. LEXIS 270 (N.D. 1986).

Investigatory Stop.

Where defendant was stopped because his vehicle was observed weaving through traffic without signaling lane changes and because police had received a report that a vehicle matching that description had struck a viaduct, then, in the course of investigating those incidents, the officers were presented with facts giving rise to a reasonable suspicion that defendant was driving while under the influence of alcohol, and they were justified in briefly detaining defendant to further investigate that suspicion. By fleeing while he was still being lawfully detained by the officers, defendant prevented them from carrying out their official duties, conduct which may have constituted a violation of this section. State v. DuPaul, 509 N.W.2d 266, 1993 N.D. LEXIS 232 (N.D. 1993).

Lack of Transcript on Appeal.

Where defendant provided no transcript on appeal, as required by N.D.R.App.P. 10(b), from convictions for preventing arrest and related offenses, the appellate court had no basis to evaluate the sufficiency of the evidence and, in response to defendant’s argument that his arrest was not a lawful warrantless arrest under N.D.C.C. § 29-06-15, had to infer that defendant failed to provide evidence supporting the defense of unlawful police conduct under N.D.C.C. § 12.1-08-02. State v. Mathre, 2004 ND 149, 683 N.W.2d 918, 2004 N.D. LEXIS 277 (N.D. 2004).

Leaving Scene During Investigation.

The fact that officer did not immediately arrest defendant did not authorize defendant to leave during a reasonable and noncoercive stop and investigation. North Dakota Dep't of Transp. v. DuPaul, 487 N.W.2d 593, 1992 N.D. LEXIS 117 (N.D. 1992).

Collateral References.

Resisting illegal arrest, with force, 44 A.L.R.3d 1078.

What constitutes obstructing or resisting officer, in absence of actual force, 66 A.L.R.5th 397.

Law Reviews.

“A Comparison of Drinking and Driving Law in Norway and North Dakota: More Than a Difference in Penalties,” 76 N.D. L. Rev. 33 (2000).

12.1-08-03. Hindering law enforcement.

  1. A person is guilty of hindering law enforcement if he intentionally interferes with, hinders, delays, or prevents the discovery, apprehension, prosecution, conviction, or punishment of another for an offense by:
    1. Harboring or concealing the other;
    2. Providing the other with a weapon, money, transportation, disguise, or other means of avoiding discovery or apprehension;
    3. Concealing, altering, mutilating, or destroying a document or thing, regardless of its admissibility in evidence;
    4. Warning the other of impending discovery or apprehension other than in connection with an effort to bring another into compliance with the law; or
    5. Giving false information or a false report to a law enforcement officer knowing such information or report to be false.
  2. Hindering law enforcement is a class C felony if the actor:
    1. Knows of the conduct of the other and such conduct constitutes a class AA, class A, or class B felony; or
    2. Knows that the other has been charged with or convicted of a crime and such crime is a class AA, class A, or class B felony.
  3. A person who commits the crime of hindering law enforcement is subject to prosecution in this state if the conduct interferes with or hinders an investigation of a crime occurring within this state. The venue of a criminal action involving the crime of hindering law enforcement is in any county in which the conduct of hindering is committed or in any county in which a criminal offense is being investigated which is hindered by the false information or other interfering conduct.

Otherwise hindering law enforcement is a class A misdemeanor.

Source: S.L. 1973, ch. 116, § 8; 1975, ch. 116, § 7; 1983, ch. 164, § 1; 2015, ch. 102, § 1, effective August 1, 2015.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Notes to Decisions

Reasonable Suspicion.

Regardless of whether the officers had a reasonable and articulable suspicion that defendant was hindering law enforcement in violation of N.D.C.C. § 12.1-08-03, the trial court found, by then, the officers noticed that defendant had a knife in a sheath that was visible in his pocket and the officers thought defendant made some action that they interpreted as a first step toward taking out his folding knife; having seen the knife and furtive gestures, the officers certainly had a reasonable and articulable suspicion that defendant was armed and possibly dangerous. State v. Beane, 2009 ND 146, 770 N.W.2d 283, 2009 N.D. LEXIS 155 (N.D. 2009).

DECISIONS UNDER PRIOR LAW

State’s Attorney.

A state’s attorney who gambled for money in a gambling house without informing against and prosecuting the keeper was guilty of a misdemeanor. Voss, 11 N.D. 540, 90 N.W. 15, 1902 N.D. LEXIS 187 (N.D. 1902).

Collateral References.

Defenses to state obstruction of justice charge relating to interfering with criminal investigation or judicial proceeding, 87 A.L.R.5th 597.

Criminal and civil liability of civilians and police officers concerning recording of police actions, 84 A.L.R.6th 89.

Law Reviews.

“A Comparison of Drinking and Driving Law in Norway and North Dakota: More Than a Difference in Penalties,” 76 N.D. L. Rev. 33 (2000).

The 2015 amendment of this section by section 1 of chapter 102, S.L. 2015 became effective August 1, 2015.

12.1-08-04. Aiding consummation of crime.

  1. A person is guilty of aiding consummation of crime if he intentionally aids another to secrete, disguise, or convert the proceeds of a crime or otherwise profit from a crime.
  2. Aiding consummation of a crime:
    1. Is a class C felony if the actor knows of the conduct of the other and such conduct constitutes a class A or class B felony.
    2. Is a class A misdemeanor if the actor knows of the conduct of the other and such conduct constitutes a class C felony or class A misdemeanor.

Otherwise aiding consummation of a crime is a class B misdemeanor.

Source: S.L. 1973, ch. 116, § 8.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Compromise of public offense prohibited except for misdemeanor or infraction on request of injured party, see N.D.C.C. § 29-01-19.

DECISIONS UNDER PRIOR LAW

Analysis

Express or Implied Contract.

Any contract or agreement, express or implied, to conceal or compound an offense, to abstain from prosecuting therefor, or to withhold any evidence thereof, was unlawful. School Dist. v. Collins, 41 N.W. 466, 6 Dakota 145, 1889 Dakota LEXIS 11 (Dakota 1889).

Ineffective Defense.

In an action on notes where the defense was that they were given to compound a felony, the answer did not state a defense because it did not show the commission of a crime or an agreement to compound a crime. Grandin Inv. Co. v. Hartung, 49 N.D. 364, 191 N.W. 783, 1922 N.D. LEXIS 64 (N.D. 1922).

12.1-08-05. Failure to appear after release — Bail jumping.

  1. A person is guilty of an offense if, after having been released upon condition or undertaking that he will subsequently appear before a court or judicial officer as required, he willfully fails to appear as required.
  2. The offense is a class C felony if the actor was released in connection with a charge of felony or while awaiting sentence or pending appeal after conviction of any crime. Otherwise it is a class A misdemeanor.

Source: S.L. 1973, ch. 116, § 8.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Notes to Decisions

Evidence Sufficient.

Evidence, including that defendant did miss her preliminary hearing, that she turned herself in 11 days thereafter, and that it was common for methamphetamine users to crash and sleep for a couple days was sufficient to convict defendant of failure to appear in violation of N.D.C.C. § 12.1-08-05(1). State v. Demarais, 2009 ND 143, 770 N.W.2d 246, 2009 N.D. LEXIS 149 (N.D. 2009).

Time of Release.

To be a violation of this section, the failure to appear must follow a release subsequent, and not prior, to an appearance before the court or judicial officer. State v. Howe, 257 N.W.2d 413, 1977 N.D. LEXIS 160 (N.D. 1977).

Collateral References.

State statutes making default on bail a separate criminal offense, 63 A.L.R.4th 1064.

Forfeiture of bail for breach of conditions of release other than that of appearance, 68 A.L.R.4th 1082.

Failure of person, released pursuant to provisions of Federal Bail Reform Act of 1966 (18 USCS secs. 3141 et. seq.), to make appearance as subjecting person to penalty provided for by 18 USCS sec. 3150, 66 A.L.R. Fed. 668.

12.1-08-06. Escape.

  1. A person is guilty of escape if, without lawful authority, the person removes or attempts to remove himself from official detention or fails to return to official detention following temporary leave granted for a specified purpose or limited period. A person who is subject to official detention under this section is guilty of escape, if while outside the state of North Dakota and without lawful authority, the person removes or attempts to remove himself from official detention, or fails to return to official detention following temporary leave granted for a specified purpose or limited period, when at the time the person is in the legal custody of a warden of the penitentiary, department of corrections and rehabilitation, or other competent authority by virtue of a lawful commitment to official detention.
  2. Escape is a class B felony if the actor uses a firearm, destructive device, or other dangerous weapon in effecting or attempting to effect the actor’s removal from official detention. Escape is a class C felony if:
    1. The actor uses any other force or threat of force against another in effecting or attempting to effect the actor’s removal from official detention; or
    2. The person escaping was in official detention by virtue of the person’s arrest for, or on charge of, a felony, or pursuant to the person’s conviction of any offense. Otherwise escape is a class A misdemeanor.
  3. In this section:
    1. “Conviction of an offense” does not include an adjudication of juvenile delinquency.
    2. “Official detention” means arrest, custody following surrender in lieu of arrest, detention in any facility for custody of persons under charge or conviction of an offense or alleged or found to be delinquent, detention under a law authorizing civil commitment in lieu of criminal proceedings or authorizing such detention while criminal proceedings are held in abeyance, detention for extradition, home detention as authorized by chapter 12-67, or custody for purposes incident to the foregoing, including transportation, medical diagnosis or treatment, court appearances, work, and recreation, or being absent without permission from any release granted while under custody of a sentence such as work or education release, community confinement, or other temporary leaves from a correctional or placement facility. “Official detention” does not include supervision on probation or parole or constraint incidental to release.
  4. Irregularity in bringing about or maintaining detention, or lack of jurisdiction of the committing or detaining authority, shall not be a defense to a prosecution under this section if the escape is from the penitentiary or other facility used for official detention or from detention pursuant to commitment by an official proceeding. In the case of other detentions, irregularity or lack of jurisdiction shall be an affirmative defense if:
    1. The escape involved no substantial risk of harm to the person or property of anyone other than the detainee; or
    2. The detaining authority did not act in good faith under color of law.
  5. The jurisdiction of a violation of this section when the person is in the legal custody of a warden of the penitentiary, the department of corrections and rehabilitation, or other lawful authority is in the county where the violation occurred if the violation occurred within this state, and is in Burleigh County or in the county in which the order committing the person to official detention was entered if the violation occurred outside this state.

Source: S.L. 1973, ch. 116, § 8; 1995, ch. 121, § 4; 2001, ch. 131, §§ 1, 2; 2007, ch. 117, § 2.

Cross-References.

Aiding or attempting the rescue or escape of another when county in state of insurrection, see N.D.C.C. § 37-01-20.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Criminal attempt, see N.D.C.C. § 12.1-06-01.

Notes to Decisions

Official Detention.

For an involuntary civil commitment to constitute official detention, a court determination is necessary that civil commitment is in lieu of a criminal proceeding or that civil commitment is while criminal charges are held in abeyance; this necessarily implies that criminal proceedings be initiated and that a court make such determinations. State v. Wingerter, 334 N.W.2d 475, 1983 N.D. LEXIS 285 (N.D. 1983).

Defendant was not in official detention while he was in state hospital as result of an involuntary civil commitment where there was no court determination that civil commitment was in lieu of criminal proceedings or while criminal proceedings were held in abeyance. State v. Wingerter, 334 N.W.2d 475, 1983 N.D. LEXIS 285 (N.D. 1983).

Defendant was guilty of felony escape where he exited sheriff’s vehicle and barricaded himself in a house after the sheriff had arrested him for violation of probation, because defendant was under official detention while in the vehicle and such detention was causally related to the defendant’s underlying conviction. State v. Rue, 2001 ND 92, 626 N.W.2d 681, 2001 N.D. LEXIS 108 (N.D. 2001).

DECISIONS UNDER PRIOR LAW

Failure to Allege Intent.

Failure to charge that accused escaped from prison “with intent to escape therefrom” was not a jurisdictional defect since intent to avoid lawful confinement or custody is inherent in word escape and since instructions required jury to find that accused had the intent to escape. State v. Hendrick, 164 N.W.2d 57, 1969 N.D. LEXIS 119 (N.D. 1969).

Recapture of Escapee.

Arrest and return of an escapee was not an arrest for the crime of escape, but a recapture under the direction of the warden; prisoner was taken into custody for the crime of escape at the time he was taken from the penitentiary with the approval of the warden and brought before the court for a preliminary hearing. State v. Brodell, 220 N.W.2d 848, 1974 N.D. LEXIS 209 (N.D. 1974).

Collateral References.

Escape or prison breach as affected by means employed, 96 A.L.R.2d 520.

Failure of prisoner to return at expiration of work furlough or other permissive release period as crime of escape, 76 A.L.R.3d 658.

Temporary unauthorized absence of prisoner as escape or attempted escape, 76 A.L.R.3d 695.

Conviction for escape where prisoner fails to leave confines of prison or institution, 79 A.L.R.4th 1060.

Validity, construction, and application of juvenile escape statutes, 46 A.L.R.5th 523.

Duress, necessity, or conditions of confinement as justification for escape from prison, 54 A.L.R.5th 141.

12.1-08-07. Public servants permitting escape.

A public servant concerned in official detention pursuant to process issued by a court, judge, or magistrate is guilty of a class A misdemeanor if he recklessly permits an escape and is guilty of a class B misdemeanor if he negligently permits an escape. “Official detention” has the meaning prescribed in subsection 3 of section 12.1-08-06.

Source: S.L. 1973, ch. 116, § 8.

Cross-References.

Action against sheriff for escape of prisoner, time limitation, see N.D.C.C. § 28-01-19.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Sheriff’s liability for rescue or escape, see N.D.C.C. § 11-15-20.

12.1-08-08. Inciting or leading riot in detention facilities.

  1. A person is guilty of a class C felony if, with intent to cause, continue, or enlarge a riot, he solicits a group of five or more persons to engage in a riot in a facility used for official detention or engages in conduct intended to serve as the beginning of or signal for such riot, or participates in planning such riot, or, in the course of such riot, issues commands or instructions in furtherance thereof.
  2. In this section:
    1. “Official detention” has the meaning prescribed in subsection 3 of section 12.1-08-06.
    2. “Riot” means a disturbance involving an assemblage of five or more persons which by tumultuous and violent conduct creates grave danger of damage or injury to property or persons or substantially obstructs the operation of the facility or other government function.

Source: S.L. 1973, ch. 116, § 8.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Collateral References.

Prosecutions of inmates of state or local penal institutions for crime of riot, 39 A.L.R.4th 1170.

12.1-08-09. Introducing or possessing contraband useful for escape.

  1. A person is guilty of a class C felony if he unlawfully provides an inmate of an official detention facility with any tool, weapon, or other object which may be useful for escape. Such person is guilty of a class B felony if the object is a firearm, destructive device, or other dangerous weapon.
  2. An inmate of an official detention facility is guilty of a class C felony if he unlawfully procures, makes, or otherwise provides himself with, or has in his possession, any tool, weapon, or other object which may be useful for escape. Such person is guilty of a class B felony if the object is a firearm, destructive device, or other dangerous weapon.
  3. In this section:
    1. “Official detention” has the meaning prescribed in subsection 3 of section 12.1-08-06.
    2. “Unlawfully” means surreptitiously or contrary to a statute or regulation, rule, or order issued pursuant thereto.

Source: S.L. 1973, ch. 116, § 8.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Criminal attempt, see N.D.C.C. § 12.1-06-01.

12.1-08-10. Harboring a runaway minor — Penalty.

A person who willfully harbors a runaway minor with knowledge that the child is being sought by a law enforcement authority is guilty of a class A misdemeanor. This section does not apply to a person who provides temporary sanctuary, not exceeding seventy-two hours, to a runaway minor who is seeking refuge from a physically, sexually, or mentally abusive person. For the purposes of this section, a “runaway minor” is an unemancipated minor who is voluntarily absent from the minor’s home without the consent of a minor’s parent entitled to legal custody of the minor or legal guardian with the intention of evading the direction or control of the parent or guardian. This section does not apply to persons providing temporary sanctuary to minors accompanied by a parent or legal guardian in a domestic violence shelter or safe home.

Source: S.L. 1991, ch. 122, § 1.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

12.1-08-11. Refusing to halt.

Any person, other than the driver of a motor vehicle under section 39-10-71, who willfully fails or refuses to stop or who otherwise flees or attempts to elude, in any manner, a pursuing peace officer, when given a visual or audible signal to stop, is guilty of a class B misdemeanor for a first or second offense and a class A misdemeanor for a subsequent offense. A signal to stop complies with this section if the signal is perceptible to the person and:

  1. If given from a vehicle, the signal is given by hand, voice, emergency light, or siren, and the vehicle is appropriately marked showing it to be an official law enforcement vehicle; or
  2. If not given from a vehicle, the signal is given by hand, voice, emergency light, or siren, and the officer is in uniform or prominently displays the officer’s badge of office.

Source: S.L. 1997, ch. 120, § 1; 2009, ch. 279, § 1; 2011, ch. 281, § 1.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Notes to Decisions

Double Jeopardy.

Even if the City of Williston, North Dakota, had adopted N.D.C.C. § 12.1-08-11 verbatim as its city ordinance or the State had stipulated to the substitution, double jeopardy did not attach, because the statute to which defendant had already pled guilty was criminalized flight by anything other than a motor vehicle, including on foot, under N.D.C.C. § 12.1-08-11, and N.D.C.C. § 39-10-71, governed flight by motor vehicle. Thus, a comparison of the two offenses revealed that they were two distinctly different crimes; therefore, double jeopardy could not attach and his conviction under N.D.C.C. § 39-10-71(1) was affirmed. State v. Stensaker, 2007 ND 6, 725 N.W.2d 883, 2007 N.D. LEXIS 7 (N.D. 2007).

CHAPTER 12.1-09 Tampering and Unlawful Influence

12.1-09-01. Tampering with witnesses and informants in proceedings.

  1. A person is guilty of a class C felony if he uses force, threat, deception, or bribery:
    1. With intent to influence another’s testimony in an official proceeding; or
    2. With intent to induce or otherwise cause another:
      1. To withhold any testimony, information, document, or thing from an official proceeding, whether or not the other person would be legally privileged to do so;
      2. To violate section 12.1-09-03;
      3. To elude legal process summoning him to testify in an official proceeding; or
      4. To absent himself from an official proceeding to which he has been summoned.
  2. A person is guilty of a class C felony if he solicits, accepts, or agrees to accept from another a thing of pecuniary value as consideration for:
    1. Influencing the actor’s testimony in an official proceeding; or
    2. The actor’s engaging in the conduct described in paragraphs 1 through 4 of subdivision b of subsection 1.
    1. It is a defense to a prosecution under this section for use of threat with intent to influence another’s testimony that the threat was not of unlawful harm and was used solely to influence the other to testify truthfully.
    2. In a prosecution under this section based on bribery, it shall be an affirmative defense that any consideration for a person’s refraining from instigating or pressing the prosecution of an offense was to be limited to restitution or indemnification for harm caused by the offense.
    3. It is no defense to a prosecution under this section that an official proceeding was not pending or about to be instituted.
  3. This section shall not be construed to prohibit the payment or receipt of witness fees provided by statute, or the payment, by the party upon whose behalf a witness is called, and receipt by a witness, of the reasonable cost of travel and subsistence incurred and the reasonable value of time spent in attendance at an official proceeding, or in the case of expert witnesses, a reasonable fee for preparing and presenting an expert opinion.

Source: S.L. 1973, ch. 116, § 9.

Cross-References.

Penalty for class C felony, see N.D.C.C. § 12.1-32-01.

Notes to Decisions

Knowledge of Accused.

To be guilty of an offense under this section, the defendant need not have absolute knowledge that the person threatened is expected to testify; information or a reasonably founded belief to that effect will suffice; whether the defendant possessed the requisite knowledge, information or belief is to be inferred from the circumstances and is a question of fact. State v. Howe, 247 N.W.2d 647, 1976 N.D. LEXIS 161 (N.D. 1976).

Substance of Offense.

The substance of the offense defined by this section is the use of a threat with intent to influence another as to his testimony in an official proceeding; it requires a willful and corrupt attempt to interfere with and obstruct the administration of justice; the offense is not limited to successful attempts at influence, but is complete when the coercive act is done. State v. Howe, 247 N.W.2d 647, 1976 N.D. LEXIS 161 (N.D. 1976).

Sufficiency of Charge.

Where information alleged that defendant, after learning of witness’ signature of complaint against a third party for contributing to the delinquency of a minor, telephoned her and told her that if she wanted to “play these silly little legal games” he would “sue for your back teeth”, sue her “for everything you’ve got”, and “charge you with neglect” of her child, it contained facts sufficient to support a charge under this section, and should not have been dismissed. State v. Howe, 247 N.W.2d 647, 1976 N.D. LEXIS 161 (N.D. 1976).

Sufficiency of Evidence.

Evidence was sufficient to convict defendant of tampering with a witness where, under N.D.C.C. § 12.1-09-01, the evidence showed that defendant had a reasonably founded belief that his daughter was expected to testify, and that he approached his daughter and her boyfriend in an attempt to bribe her to change her story about the drug paraphernalia. State v. Schmeets, 2007 ND 197, 742 N.W.2d 513, 2007 N.D. LEXIS 201 (N.D. 2007).

Who Is “Witness”.

In order to be a “witness” within the meaning of this section, one need not be under subpoena to testify; it is sufficient that he know or be supposed to know material facts and be expected to testify to them or be called to do so. State v. Howe, 247 N.W.2d 647, 1976 N.D. LEXIS 161 (N.D. 1976).

Collateral References.

Validity, construction, and application of state statutes imposing criminal penalties for influencing, intimidating, or tampering with witness, 8 A.L.R.4th 769.

Validity, construction, and application of federal witness tampering statute, 18 U.S.C.A. § 1512(b), 183 A.L.R. Fed. 611.

Construction and application of federal witness tampering statute, 18 U.S.C.A. § 1512(b), 185 A.L.R. Fed. 1.

12.1-09-02. Tampering with informants in criminal investigations.

A person is guilty of a class C felony if, believing another may have information relating to an offense, he deceives such other person or employs force, threat, or bribery with intent to hinder, delay, or prevent communication of such information to a law enforcement officer. The affirmative defense in subdivision b of subsection 3 of section 12.1-09-01 applies to this section.

Source: S.L. 1973, ch. 116, § 9.

Cross-References.

Penalty for class C felony, see N.D.C.C. § 12.1-32-01.

12.1-09-03. Tampering with physical evidence.

  1. A person is guilty of an offense if, believing an official proceeding is pending or about to be instituted, or believing process, demand, or order has been issued or is about to be issued, he alters, destroys, mutilates, conceals, or removes a record, document, or thing with intent to impair its verity or availability in such official proceeding or for the purposes of such process, demand, or order.
  2. The offense is a class C felony if the actor substantially obstructs, impairs, or perverts prosecution for a felony. Otherwise it is a class A misdemeanor.
  3. In this section, “process, demand, or order” means process, demand, or order authorized by law for the seizure, production, copying, discovery, or examination of a record, document, or thing.

Source: S.L. 1973, ch. 116, § 9.

Cross-References.

Penalty for class C felony, see N.D.C.C. § 12.1-32-01.

Tampering with public records, see N.D.C.C. § 12.1-11-05.

Collateral References.

Intentional spoliation of evidence, interfering with prospective civil action, as actionable, 70 A.L.R.4th 984.

Criminal liability of attorney for tampering with evidence, 49 A.L.R. 5th 619.

Negligent spoliation of evidence, interfering with prospective civil action, as actionable, 101 A.L.R.5th 61.

Electronic spoliation of evidence, 3 A.L.R.6th 13.

Law Reviews.

“A Comparison of Drinking and Driving Law in Norway and North Dakota: More Than a Difference in Penalties,” 76 N.D. L. Rev. 33 (2000).

12.1-09-04. Harassment of and communication with jurors.

  1. A person is guilty of a class A misdemeanor if, with intent to influence the official action of another as juror, that person communicates directly or indirectly with the juror, other than as part of the proceedings in a case, or harasses or alarms the juror. A person is guilty of a class A misdemeanor if, with the intent to harass or annoy a former juror because of the verdict returned by the jury or the participation of the juror in the verdict, that person communicates directly or indirectly with the juror in a manner that intimidates the juror or conveys a threat of injury or damage to the juror’s property or person. Conduct directed against the juror’s spouse or other relative residing in the same household with the juror shall be deemed conduct directed against the juror.
  2. In this section, “juror” means a grand juror or a petit juror and includes a person who has been drawn or summoned to attend as a prospective juror, and any referee, arbitrator, umpire, or assessor authorized by law to hear and determine any controversy.

Source: S.L. 1973, ch. 116, § 9; 2001, ch. 132, § 1.

Cross-References.

Penalty for class A misdemeanor, see N.D.C.C. § 12.1-32-01.

Collateral References.

Threats of violence against juror in criminal trial as ground for mistrial or dismissal of juror, 3 A.L.R.5th 963.

12.1-09-05. Eavesdropping on jury deliberations.

  1. A person is guilty of a class A misdemeanor if he intentionally:
    1. Records the proceedings of a jury while such jury is deliberating or voting; or
    2. Listens to or observes the proceedings of any jury of which he is not a member while such jury is deliberating or voting.
  2. This section shall not apply to the taking of notes by a juror in connection with and solely for the purpose of assisting him in the performance of his official duties. Nor does this section apply to a person studying the jury process in the manner provided by statute, and under the control and supervision of the court. Inapplicability under this subsection is a defense.
  3. In this section, “jury” means grand jury or petit jury, and “juror” means grand juror or petit juror.

Source: S.L. 1973, ch. 116, § 9.

Cross-References.

Penalty for class A misdemeanor, see N.D.C.C. § 12.1-32-01.

12.1-09-06. Nondisclosure of retainer in criminal matter.

  1. A person employed for compensation to influence the official action of a public servant with respect to:
    1. The initiation, conduct, or dismissal of a prosecution;
    2. The imposition or modification of a sentence; or
    3. The granting of parole or probation is guilty of a class A misdemeanor if he privately addresses to such public servant any representation, entreaty, argument, or other communication intended to influence official action without disclosing the fact of such employment, knowing that the public servant is unaware of it.
  2. This section does not apply to an attorney at law or to a person authorized by statute or regulation to act in a representative capacity with respect to the official action when he is acting in such capacity and makes known to the public servant or has indicated in any manner authorized by law that he is acting in such capacity. Inapplicability under this subsection is a defense.

Source: S.L. 1973, ch. 116, § 9.

Cross-References.

Penalty for class A misdemeanor, see N.D.C.C. § 12.1-32-01.

CHAPTER 12.1-10 Contempt — Obstruction of Judicial Proceedings

12.1-10-01. Criminal contempt. [Repealed]

Repealed by S.L. 1993, ch. 89, § 32.

12.1-10-02. Failure to appear as witness, to produce information, or to be sworn.

  1. A person who has been lawfully ordered to appear at a specified time and place to testify or to produce information in an official proceeding is guilty of a class A misdemeanor if, without lawful privilege, he fails to appear or to produce the information at that time and place.
  2. A person attending an official proceeding is guilty of a class A misdemeanor if, without lawful privilege, he fails to comply with a lawful order:
    1. To occupy or remain at the designated place from which he is to testify as a witness in such proceeding; or
    2. To be sworn or to make equivalent affirmation as a witness in such proceeding.
  3. It is a defense to a prosecution under this section that the defendant:
    1. Was prevented from appearing at the specified time and place or unable to produce the information because of circumstances to the creation of which he did not contribute in reckless disregard of the requirement to appear or to produce; or
    2. Complied with the order before his failure to do so substantially affected the proceeding.
  4. In this section, and in section 12.1-10-03:
    1. “Authorized agency” means an agency authorized by statute to issue subpoenas or similar process supported by the sanctions of this section.
    2. “Information” means a book, paper, document, record, or other tangible object.
    3. “Official proceeding” means:
      1. An official proceeding before a judge or court of this state, a magistrate, or a grand jury.
      2. An official proceeding before the legislative assembly or one of its session or interim committees.
      3. An official proceeding in which, pursuant to lawful authority, a court orders attendance or the production of information.
      4. An official proceeding before an authorized agency.
      5. An official proceeding which otherwise is made expressly subject to this section.

Source: S.L. 1973, ch. 116, § 10.

Cross-References.

Penalty for class A misdemeanor, see N.D.C.C. § 12.1-32-01.

12.1-10-03. Refusal to testify.

  1. A person is guilty of a class A misdemeanor if, without lawful privilege, he refuses:
    1. To answer a question pertinent to the subject under inquiry in an official proceeding before the legislative assembly, or one of its session or interim committees, and continues in such a refusal after the presiding officer directs him to answer, and advises him that his continuing refusal may make him subject to criminal prosecution; or
    2. To answer a question in any other official proceeding and continues in such refusal after a court or judge directs or orders him to answer and advises him that his continuing refusal may make him subject to criminal prosecution.
  2. It is a defense to a prosecution under this section that the defendant complied with the direction or order before his refusal to do so substantially affected the proceeding.

Source: S.L. 1973, ch. 116, § 10.

Cross-References.

Penalty for class A misdemeanor, see N.D.C.C. § 12.1-32-01.

12.1-10-04. Hindering proceedings by disorderly conduct.

  1. A person is guilty of a class A misdemeanor if the person intentionally hinders an official proceeding by noise or violent or tumultuous behavior or disturbance.
  2. A person is guilty of a class B misdemeanor if the person recklessly hinders an official proceeding by noise or violent or tumultuous behavior or disturbance.

Source: S.L. 1973, ch. 116, § 10.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Disorderly conduct, see N.D.C.C. § 12.1-31-01.

Collateral References.

Defenses to state obstruction of justice charge relating to interfering with criminal investigation or judicial proceeding, 87 A.L.R.5th 597.

12.1-10-05. Disobedience of judicial order.

  1. A person is guilty of a class A misdemeanor if the person disobeys or resists a lawful temporary restraining order or preliminary or final injunction or other final order, other than for the payment of money, of a court of this state.
  2. Notwithstanding the limitations of section 12.1-32-01, the defendant may be sentenced to pay a fine in any amount deemed just by the court.

Source: S.L. 1973, ch. 116, § 10.

Cross-References.

Penalty for class A misdemeanor, see N.D.C.C. § 12.1-32-01.

Notes to Decisions

Evidence Sufficient.

Sufficient evidence supported defendant’s convictions of four counts of disobedience of a judicial order because the evidence showed defendant repeatedly violated an eviction judgment by returning to live in a home from which defendant had been evicted. State v. Baltrusch, 2019 ND 259, 934 N.W.2d 886, 2019 N.D. LEXIS 261 (N.D. 2019).

Failure to Demand Hearing or Dissolution.

Trial court erred in dismissing criminal charges under this section against defendants accused of violating temporary injunction, who had not exercised their right to demand a hearing be held within six months of the time the temporary injunction was issued or to seek dissolution of the injunction after six months under N.D.C.C. § 32-06-03, because the injunction remained valid and their attempt to dissolve the injunction after the alleged violation came too late. State v. Holecek, 545 N.W.2d 800, 1996 N.D. LEXIS 102 (N.D. 1996).

Violation of Preliminary Injunction.

There was sufficient evidence for the jury to find that the defendant was guilty of disobeying a lawful preliminary injunction where the defendant evidenced knowledge of the injunction by her initial lawful demonstration, by her response to a warning, and by her testimony, where there was ample evidence that the defendant was part of a group that demonstrated other than quietly and peacefully, and where there were evidentiary conflicts and factual questions about the defendant’s state of mind sufficient for the jury to infer a willfulness to violate the injunction. State v. Franck, 499 N.W.2d 108, 1993 N.D. LEXIS 73 (N.D. 1993).

12.1-10-06. Soliciting obstruction of proceedings.

A person is guilty of a class A misdemeanor if the person solicits another to commit an offense defined in sections 12.1-10-02 through 12.1-10-05.

Source: S.L. 1973, ch. 116, § 10.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

CHAPTER 12.1-11 Perjury — Falsification — Breach of Duty

12.1-11-01. Perjury.

  1. A person is guilty of perjury, a class C felony, if, in an official proceeding, the person makes a false statement under oath or equivalent affirmation, or swears or affirms the truth of a false statement previously made, when the statement is material and the person does not believe the statement to be true.
  2. Commission of perjury need not be proved by any particular number of witnesses or by documentary or other types of evidence.
  3. If in the course of one or more official proceedings, the defendant made a statement under oath or equivalent affirmation inconsistent with another statement made by the defendant under oath or equivalent affirmation to the degree that one of them is necessarily false, both having been made within the period of the statute of limitations, the prosecution may set forth the statements in a single count alleging in the alternative that one or the other was false and not believed by the defendant to be true. Proof that the defendant made such statements constitutes a prima facie case that one or the other of the statements was false, but in the absence of sufficient proof of which statement was false, the defendant may be convicted under this section only if each of such statements was material to the official proceeding in which it was made.
  4. For purposes of this section, “false statement under oath or equivalent affirmation” includes a writing made in accordance with chapters 31-14 and 31-15.

Source: S.L. 1973, ch. 116, § 11; 2011, ch. 243, § 1; 2019, ch. 277, § 1, effective August 1, 2019.

Cross-References.

Parties to be advised of perjury provisions, see N.D.C.C. § 28-32-34.

Penalty for class C felony, see N.D.C.C. § 12.1-32-01.

Notes to Decisions

Interpretation.

This section, entitled “Perjury,” and N.D.C.C. § 12.1-11-02, entitled “False statements,” are derived from sections 1351 and 1352, respectively, of the proposed Federal Criminal Code. Hence, when confronted with a question of statutory interpretation, courts will be guided by both the drafter’s official comments to the proposed Federal Criminal Code and the relevant legislative history. State v. Bower, 442 N.W.2d 438, 1989 N.D. LEXIS 131 (N.D. 1989).

Materiality of Statement.

In a prosecution of perjury, state must show that false statement was material to cause before court; such determination of materiality being a legal question for court. State v. Hanson, 302 N.W.2d 399, 1981 N.D. LEXIS 253 (N.D. 1981).

DECISIONS UNDER PRIOR LAW

Application for Insurance.

Knowingly and falsely answering interrogatories on an application for insurance agent’s license was perjury, since former N.D.C.C. § 26-17-01, providing for such interrogatories, required that they be answered under oath and no prohibition against giving false answers, or penalty for doing so, was provided in that section. State v. Davis, 138 N.W.2d 595, 1965 N.D. LEXIS 106 (N.D. 1965).

Materiality of Testimony.

A conviction could not be sustained where the record disclosed the false testimony to be immaterial, nor where the record failed to disclose the materiality of the testimony to the inquiry upon which it was given. State v. Falk, 34 N.D. 520, 159 N.W. 10, 1916 N.D. LEXIS 51 (N.D. 1916).

In a prosecution for perjury, the materiality of the questions asked on a former trial and of the answers given thereto were questions of law for the court. State v. Scott, 37 N.D. 105, 163 N.W. 810, 1917 N.D. LEXIS 86 (N.D. 1917).

Collateral References.

Recantation as defense in perjury prosecution, 64 A.L.R.2d 176, 281.

Statement of belief or opinion as perjury, 66 A.L.R.2d 791.

Circumstantial evidence, conviction of perjury where one or more of elements is established solely by, 88 A.L.R.2d 852.

Contempt, perjury or false swearing as, 89 A.L.R.2d 1258.

Defense: invalidity of statute or ordinance giving rise to proceedings in which false testimony was received as defense for prosecution for perjury, 34 A.L.R.3d 413.

Jurisdiction: offense of perjury as affected by lack of jurisdiction of court or government body before which false testimony was given, 36 A.L.R.3d 1038.

Attorney and client: rights and duties of attorney in a criminal prosecution where client informs him of intention to present perjured testimony, 64 A.L.R.3d 385.

Incomplete, misleading, or unresponsive but literally true statement as perjury, 69 A.L.R.3d 993.

Perjury conviction as affected by notary’s nonobservance of formalities for administration of oath to affiant, 80 A.L.R.3d 278.

Acquittal as bar to a prosecution of accused for perjury committed at trial, 89 A.L.R.3d 1098.

Materiality of testimony forming basis of perjury charge as question for court or jury in state trial, 37 A.L.R.4th 948.

Determination of materiality of allegedly perjurious testimony in prosecution under 18 USCS secs. 1621, 1622, 22 A.L.R. Fed. 379.

12.1-11-02. False statements.

  1. A person is guilty of a class A misdemeanor if, in an official proceeding, he makes a false statement, whether or not material, under oath or equivalent affirmation, or swears or affirms the truth of such a statement previously made, if he does not believe the statement to be true.
  2. A person is guilty of a class A misdemeanor if, in a governmental matter, he:
    1. Makes a false written statement, when the statement is material and he does not believe it to be true;
    2. Intentionally creates a false impression in a written application for a pecuniary or other benefit, by omitting information necessary to prevent a material statement therein from being misleading;
    3. Submits or invites reliance on any material writing which he knows to be forged, altered, or otherwise lacking in authenticity;
    4. Submits or invites reliance on any sample, specimen, map, boundarymark, or other object which he knows to be false in a material respect; or
    5. Uses a trick, scheme, or device which he knows to be misleading in a material respect.
  3. This section does not apply to information given during the course of an investigation into possible commission of an offense unless the information is given in an official proceeding or the declarant is otherwise under a legal duty to give the information. Inapplicability under this subsection is a defense.
  4. A matter is a “governmental matter” if it is within the jurisdiction of a government office or agency, or of an office, agency, or other establishment in the legislative or the judicial branch of government.

Source: S.L. 1973, ch. 116, § 11; 1975, ch. 116, § 8.

Cross-References.

Penalty for class A misdemeanor, see N.D.C.C. § 12.1-32-01.

Notes to Decisions

Complaint Sufficient.

The term “willfully” need not be included in a criminal complaint in order to charge the offense of falsification in a governmental matter in violation of subdivision (2)(a) of this section. State v. Bower, 442 N.W.2d 438, 1989 N.D. LEXIS 131 (N.D. 1989).

Interpretation of Statute.

Section 12.1-11-01, entitled “Perjury,” and this section, entitled “False statements,” are derived from sections 1351 and 1352, respectively, of the proposed Federal Criminal Code. Hence, when confronted with a question of statutory interpretation, the courts will be guided by both the drafter’s official comments to the proposed Federal Criminal Code and the relevant legislative history. State v. Bower, 442 N.W.2d 438, 1989 N.D. LEXIS 131 (N.D. 1989).

Tortious Interference With Prospective Business Advantage.

Racing simulcast provider and its owner were not entitled to recovery against an employee for tortiously interfering with their prospective business advantage. The employee did not violate N.D.C.C. §§ 12.1-11-02(1) and 12.1-11-03(1) by offering a statement of his opinion to law enforcement officers. Bala v. Stenehjem, 671 F. Supp. 2d 1067, 2009 U.S. Dist. LEXIS 111133 (D.N.D. 2009).

DECISIONS UNDER PRIOR LAW

Justified Reliance.

A party to a contract, in the absence of knowledge putting him on inquiry, was justified in relying on statements of fact regarding the property involved. Moone v. Martin State Bank, 59 N.D. 352, 230 N.W. 11, 1930 N.D. LEXIS 149 (N.D. 1930).

12.1-11-03. False information or report to law enforcement officers or security officials.

A person is guilty of a class A misdemeanor if that person:

  1. Gives false information or a false report to a law enforcement officer which that person knows to be false, and the information or report may interfere with an investigation or may materially mislead a law enforcement officer; or
  2. Falsely reports to a law enforcement officer or other security official the occurrence of a crime of violence or other incident calling for an emergency response when that person knows that the incident did not occur. “Security official” means a public servant responsible for averting or dealing with emergencies involving public safety.

Source: S.L. 1973, ch. 116, § 11; 1999, ch. 121, § 1.

Notes to Decisions

Tortious Interference With Prospective Business Advantage.

Analysis

Evidence Insufficient.

Information Sufficient.

Racing simulcast provider and its owner were not entitled to recovery against an employee for tortiously interfering with their prospective business advantage. The employee did not violate N.D.C.C. §§ 12.1-11-02(1) and 12.1-11-03(1) by offering a statement of his opinion to law enforcement officers. Bala v. Stenehjem, 671 F. Supp. 2d 1067, 2009 U.S. Dist. LEXIS 111133 (D.N.D. 2009).

Evidence Insufficient.

Where while an officer was attempting to serve a warrant defendant provided him with a false name, the evidence was insufficient to convict defendant of providing false information because there was no investigation of defendant when she provided the false name or any possibility that her false name misled the officer. State v. Houkom, 2021 ND 223, 967 N.W.2d 801, 2021 N.D. LEXIS 215 (N.D. 2021).

Information Sufficient.

Where while an officer was attempting to serve a warrant defendant provided him with a false name, the criminal information was sufficient because it set forth the charged offense using the words of the statute, which was sufficient specificity to allow defendant to prepare a defense. State v. Houkom, 2021 ND 223, 967 N.W.2d 801, 2021 N.D. LEXIS 215 (N.D. 2021).

12.1-11-04. General provisions.

  1. Falsification is material under sections 12.1-11-01, 12.1-11-02, and 12.1-11-03 regardless of the admissibility of the statement under rules of evidence, if it could have affected the course or outcome of the official proceeding or the disposition of the matter in which the statement is made. Whether a falsification is material in a given factual situation is a question of law. It is no defense that the declarant mistakenly believed the falsification to be immaterial.
  2. It is no defense to a prosecution under sections 12.1-11-01 or 12.1-11-02 that the oath or affirmation was administered or taken in an irregular manner or that the declarant was not competent to make the statement. A document purporting to be made upon oath or affirmation at a time when the actor represents it as being so verified shall be deemed to have been duly sworn or affirmed.
  3. It is a defense to a prosecution under sections 12.1-11-01, 12.1-11-02, or 12.1-11-03 that the actor retracted the falsification in the course of the official proceeding or matter in which it was made, if in fact he did so before it became manifest that the falsification was or would be exposed and before the falsification substantially affected the proceeding or the matter.
  4. In sections 12.1-11-01 and 12.1-11-02, “statement” means any representation but includes a representation of opinion, belief, or other state of mind only if the representation clearly relates to state of mind apart from or in addition to any facts which are the subject of the representation.

Source: S.L. 1973, ch. 116, § 11.

Cross-References.

Mistake of fact or law, see N.D.C.C. §§ 12.1-02-03, 12.1-05-09.

Notes to Decisions

Retraction Defense.

Defendant has the burden of proving by the preponderance of the evidence that he is within the protection of the retraction defense provided by this section. State v. Hanson, 302 N.W.2d 399, 1981 N.D. LEXIS 253 (N.D. 1981).

The defense of retraction provided by this section is a bar to the commencement of trial and not an affirmative defense to be asserted at trial; whether defendant is entitled to the benefit of such defense is a question of law to be decided by the trial court, with the assistance of an evidentiary hearing if necessary. State v. Hanson, 302 N.W.2d 399, 1981 N.D. LEXIS 253 (N.D. 1981).

The exposure of perjury becomes “manifest” when the defendant knows or has reason to know that the authorities are or will be aware of the falsification; the crucial matter being defendant’s motive in retracting in determining whether retraction occurs before perjury becomes manifest. State v. Hanson, 302 N.W.2d 399, 1981 N.D. LEXIS 253 (N.D. 1981).

To have the benefit of the defense of retraction provided by this section, defendant’s retraction of the falsification must have occurred before it became manifest and before it substantially affected the proceeding. State v. Hanson, 302 N.W.2d 399, 1981 N.D. LEXIS 253 (N.D. 1981).

Whether retraction of falsification occurred before it “substantially affected the proceeding” is to be decided on a case-by-case basis; defendant was allowed the retraction defense where at the time of retraction the record did not indicate the defendant suspected or had reason to suspect the court was on to her attempt to deceive, the court was not greatly hampered in the conduct of its business, defendant’s testimony involved only a minor part of the case, and the judge was notified of the retraction in time so that his deliberations were not tainted. State v. Hanson, 302 N.W.2d 399, 1981 N.D. LEXIS 253 (N.D. 1981).

12.1-11-05. Tampering with public records.

  1. A person is guilty of an offense if he:
    1. Knowingly makes a false entry in or false alteration of a government record; or
    2. Knowingly, without lawful authority, destroys, conceals, removes, or otherwise impairs the verity or availability of a government record.
  2. The offense is:
    1. A class C felony if committed by a public servant who has custody of the government record.
    2. A class A misdemeanor if committed by any other person.
  3. In this section “government record” means:
    1. Any record, document, or thing belonging to, or received or kept by the government for information or record.
    2. Any other record, document, or thing required to be kept by law, pursuant, in fact, to a statute which expressly invokes the sanctions of this section.

Source: S.L. 1973, ch. 116, § 11; 1975, ch. 116, § 9.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Forgery, counterfeiting, deceptive writings, see N.D.C.C. §§ 12.1-24-01 to 12.1-24-03.

Tampering with physical evidence, see N.D.C.C. § 12.1-09-03.

Collateral References.

Receipt of public documents taken by another without authorization as receipt of stolen property, 57 A.L.R.3d 1211.

What constitutes a public record or document within statute making falsification, forgery, mutilation, removal, or other misuse thereof an offense, 75 A.L.R.4th 1067.

12.1-11-06. Public servant refusing to perform duty.

Any public servant who knowingly refuses to perform any duty imposed upon him by law is guilty of a class A misdemeanor.

Source: S.L. 1973, ch. 116, § 11; 1975, ch. 116, § 10.

Cross-References.

Penalty for class A misdemeanor, see N.D.C.C. § 12.1-32-01.

DECISIONS UNDER PRIOR LAW

Analysis

Judicial Mistake.

A state’s attorney, passing on the sufficiency of evidence as a basis for criminal prosecution, was not liable for a judicial mistake or for having process issued. Kittler v. Kelsch, 56 N.D. 227, 216 N.W. 898, 1927 N.D. LEXIS 94 (N.D. 1927).

Jury Instruction.

In an action for libel based on a newspaper article charging a public official with failure to discharge the duties of his office, it was proper for the trial court to instruct the jury as to the statute defining nonfeasance in office. Murphy v. Farmers Educ. & Coop. Union, 72 N.W.2d 636, 1955 N.D. LEXIS 143 (N.D. 1955).

Refusal to Prosecute.

The willful refusal of a state’s attorney to prosecute a case constituted a misdemeanor. State ex rel. Clyde v. Lauder, 11 N.D. 136, 90 N.W. 564, 1902 N.D. LEXIS 194 (N.D. 1902).

12.1-11-07. Fraudulent practice in urine testing.

A person is guilty of a class A misdemeanor if that person willfully defrauds a urine test and the test is designed to detect the presence of a chemical substance or a controlled substance. A person is guilty of a class A misdemeanor if that person knowingly possesses, distributes, or assists in the use of a device, chemical, or real or artificial urine advertised or intended to be used to alter the outcome of a urine test.

Source: S.L. 2005, ch. 113, § 1; 2009, ch. 128, § 1.

Cross-References.

Penalty for class A misdemeanor, see N.D.C.C. § 12.1-32-01.

CHAPTER 12.1-12 Bribery — Unlawful Influence of Public Servants

12.1-12-01. Bribery.

  1. A person is guilty of bribery, a class C felony, if he knowingly offers, gives, or agrees to give to another, or solicits, accepts, or agrees to accept from another, a thing of value as consideration for:
    1. The recipient’s official action as a public servant; or
    2. The recipient’s violation of a known legal duty as a public servant.
  2. It is no defense to a prosecution under this section that a recipient was not qualified to act in the desired way whether because he had not yet assumed office, or lacked jurisdiction, or for any other reason.
  3. A prima facie case is established under this section upon proof that the actor knew that a thing of pecuniary value was offered, given, or agreed to be given by, or solicited, accepted, or agreed to be accepted from, a person having an interest in an imminent or pending: a. examination, investigation, arrest, or judicial or administrative proceeding; or b. bid, contract, claim, or application, and that interest could be affected by the recipient’s performance or nonperformance of his official action or violation of his known legal duty as a public servant.

Source: S.L. 1973, ch. 116, § 12.

Cross-References.

Bribery of school official, see N.D.C.C. § 15-49-11.

Penalty for class C felony, see N.D.C.C. § 12.1-32-01.

DECISIONS UNDER PRIOR LAW

“Bribe”.

The word “bribe” was given a specific meaning by statute and when used in an information in connection with a charge that a bribe was offered unlawfully and feloniously with intent to influence the action of a road overseer, the information was sufficient to make it certain what offense was charged. State v. Johnson, 17 N.D. 554, 118 N.W. 230, 1908 N.D. LEXIS 89 (N.D. 1908).

Completion of Crime.

The crime of giving a bribe to a deputy sheriff was complete when the money was paid feloniously to influence future acts with reference to a possible future violation of law. State v. La Flame, 30 N.D. 489, 152 N.W. 810, 1915 N.D. LEXIS 139 (N.D. 1915).

Payment to Avoid Arrest.

Payment of money to a deputy sheriff to procure immunity from future arrest for violating the prohibition law constituted giving a bribe. State v. La Flame, 30 N.D. 489, 152 N.W. 810, 1915 N.D. LEXIS 139 (N.D. 1915).

Receipt of Bribes by Governor.

A contention that the power to determine whether a governor should continue in office was reposed solely in the legislative assembly under article 14 of the constitution was denied by section 81 of that instrument which was contained in the statutes as former N.D.C.C. § 12-08-18 relating to receipt of bribes by the governor. State ex rel. Olson v. Langer, 65 N.D. 68, 256 N.W. 377, 1934 N.D. LEXIS 178 (N.D. 1934).

Collateral References.

Other bribery or acceptance of bribe, admissibility of evidence tending to show commission of, in prosecution for bribery or accepting bribes, 20 A.L.R.2d 1012.

Solicitation or receipt of funds by public officer or employee for political campaign expenses or similar purposes as bribery, 55 A.L.R.2d 1137.

Recovery of money paid, or property transferred, as a bribe, 60 A.L.R.2d 1273.

Entrapment to commit bribery or to offer a bribe, 69 A.L.R.2d 1397.

Validity and construction of statutes punishing commercial bribery, 1 A.L.R.3d 1350.

Corporations: criminal liability of corporation for bribery or conspiracy to bribe public official, 52 A.L.R.3d 1274.

Furnishing public official with meals, lodging, or travel, or receipt of such benefits, as bribery, 67 A.L.R.3d 1231.

Criminal offense of bribery as affected by lack of authority of state public officer or employee, 73 A.L.R.3d 374.

Federal regulation of competitive practices in liquor industry under sec. 5 of Federal Alcohol Administration Act (27 USCS sec. 205), 58 A.L.R. Fed. 797.

Law Reviews.

Article: Lawyering and Lobbying: The Discipline of Public Policy Advocacy, 87 N.D. L. Rev. 59 (2011).

12.1-12-02. Illegal influence between legislators or between legislators and governor.

Any person who violates the provisions of section 9 of article IV or section 10 of article V of the Constitution of North Dakota is guilty of a class C felony.

Source: S.L. 1973, ch. 116, § 12; 1989, ch. 69, § 6; 2003, ch. 48, § 7.

Cross-References.

Penalty for class C felony, see N.D.C.C. § 12.1-32-01.

12.1-12-03. Unlawful compensation for assistance in government matters.

  1. A public servant is guilty of a class A misdemeanor if he solicits, accepts, or agrees to accept a thing of pecuniary value from nongovernmental sources:
    1. As compensation for advice or other assistance in preparing or promoting a bill, contract, claim, or other matter which is or is likely to be subject to his official action;
    2. As compensation for omitting or delaying official action; or
    3. As a fee or compensation for services not rendered or to which he was not legally entitled.
  2. A person is guilty of a class A misdemeanor if he knowingly offers, gives, or agrees to give a thing of pecuniary value to a public servant, receipt of which is prohibited by this section.

Source: S.L. 1973, ch. 116, § 12.

Cross-References.

Penalty for class A misdemeanor, see N.D.C.C. § 12.1-32-01.

DECISIONS UNDER PRIOR LAW

Purpose.

The object of the section prohibiting a public officer from taking unlawful fees was to prevent improper influences being brought to bear upon official action and it was not intended to include the offense of demanding and receiving extortionate fees where the officer asked for such fees as legal fees. State v. Bauer, 1 N.D. 273, 47 N.W. 378, 1890 N.D. LEXIS 35 (N.D. 1890).

12.1-12-04. Trading in public office and political endorsement.

  1. A person is guilty of a class A misdemeanor if he solicits, accepts, or agrees to accept, or offers, gives, or agrees to give, a thing of pecuniary value as consideration for approval or disapproval by a public servant or party official of a person for:
    1. Appointment, employment, advancement, or retention as a public servant; or
    2. Designation or nomination as a candidate for elective office.
  2. In this section:
    1. “Approval” includes recommendation, failure to disapprove, or any other manifestation of favor or acquiescence.
    2. “Disapproval” includes failure to approve or any other manifestation of disfavor or nonacquiescence.
    3. “Party official” means a person who holds a position or office in a political party, whether by election, appointment, or otherwise.
  3. Any appointment of a public servant made in violation of this section is void, but any official action taken by the appointee prior to conviction under this section is valid.

Source: S.L. 1973, ch. 116, § 12.

Cross-References.

Penalty for class A misdemeanor, see N.D.C.C. § 12.1-32-01.

DECISIONS UNDER PRIOR LAW

Contractual Provision Void.

A provision in a partnership contract whereby the parties agreed to procure the appointment of one partner to a public office and that the fees arising from such office would inure to the benefit of the firm, was void. Wishek v. Hammond, 10 N.D. 72, 84 N.W. 587, 1900 N.D. LEXIS 12 (N.D. 1900).

12.1-12-05. Trading in special influence.

A person is guilty of a class A misdemeanor if he knowingly offers, gives, or agrees to give, or solicits, accepts, or agrees to accept, a thing of pecuniary value for exerting, or procuring another to exert, special influence upon a public servant with respect to his legal duty or official action as a public servant. “Special influence” means power to influence through kinship or by reason of position as a public servant or party official, as defined in section 12.1-12-04.

Source: S.L. 1973, ch. 116, § 12.

Cross-References.

Penalty for class A misdemeanor, see N.D.C.C. § 12.1-32-01.

Unlawful means to influence legislative assembly, see N.D.C.C. § 54-05.1-06.

12.1-12-06. Threatening public servants.

  1. A person is guilty of a class C felony if that person threatens harm to a public servant with intent to influence the public servant’s official action as a public servant in a pending or prospective judicial or administrative proceeding held before the public servant, or with intent to influence the public servant to violate the public servant’s duty as a public servant.
  2. A person is guilty of a class C felony if, with intent to influence another’s official action as a public servant, the person threatens:
    1. To commit any crime or to do anything unlawful;
    2. To accuse anyone of a crime; or
    3. To expose a secret or publicize an asserted fact, whether true or false, tending to subject any individual, living or deceased, to hatred, contempt, or ridicule, or to impair another’s credit or business repute.
    1. A person is guilty of an offense if the person files any lien or encumbrance against real or personal property of a public servant if that person knows or has reason to know the lien or encumbrance is false or contains any materially false or fraudulent statement or representation.
    2. An offense under this subsection is a class A misdemeanor, unless the person previously pled guilty or had been convicted under this subsection on two or more occasions, in which event the offense is a class C felony.
  3. It is not a defense to a prosecution under this section that an individual whom the actor sought to influence was not qualified to act in the desired way whether because the individual had not yet assumed office, or lacked jurisdiction, or for any other reason.

Source: S.L. 1973, ch. 116, § 12; 2015, ch. 103, § 1, effective August 1, 2015.

Cross-References.

Penalty for class C felony, see N.D.C.C. § 12.1-32-01.

Notes to Decisions

Federal Criminal Code.

Section was adopted by the legislature from, and is identical to, the proposed Federal Criminal Code’s provision on threatening public servants. State v. Haugen, 392 N.W.2d 799, 1986 N.D. LEXIS 387 (N.D. 1986).

Frivolous Lawsuit.

It is not a crime to bring a frivolous lawsuit against a public official. Rather, the punishment for such abuses of process is the imposition of appropriate monetary sanctions against the party bringing the frivolous action. State v. Haugen, 392 N.W.2d 799, 1986 N.D. LEXIS 387 (N.D. 1986).

Question of Fact or Law.

Generally, whether the words used in the communication constitute a true threat is a question for the jury. Nevertheless, some cases exist when a court should determine as a matter of law that a particular threat does not constitute a true threat. State v. Haugen, 392 N.W.2d 799, 1986 N.D. LEXIS 387 (N.D. 1986).

Threat of Civil Action.

A threat to bring a civil action against a public official is not proscribed by the statute. State v. Haugen, 392 N.W.2d 799, 1986 N.D. LEXIS 387 (N.D. 1986).

12.1-12-07. Sports bribery.

  1. A person is guilty of a class C felony if, with intent to prevent a publicly exhibited sporting contest from being conducted in accordance with the rules and usages purporting to govern it, he:
    1. Confers, offers, or agrees to confer any benefit upon, or threatens any harm to, a participant, official, or other person associated with the contest; or
    2. Tampers with any person, animal, or thing.
  2. A person is guilty of a class C felony if he knowingly solicits, accepts, or agrees to accept any benefit, the giving of which is prohibited under subsection 1.
  3. A “publicly exhibited sporting contest” is any contest in any sport, between individual contestants or teams of contestants, the occurrence of which is publicly announced in advance of the event.
  4. The status of the contestant as amateur or professional is not material to the commission of the offense described in this section.

Source: S.L. 1973, ch. 116, § 12.

Cross-References.

Penalty for class C felony, see N.D.C.C. § 12.1-32-01.

Collateral References.

Athletic contests, bribery in, 49 A.L.R.2d 1234.

12.1-12-08. Commercial bribery.

  1. A person is guilty of a class C felony if he:
    1. Confers, agrees, or offers to confer any benefit upon an employee or agent without the consent of the latter’s employer or principal, with intent to influence his conduct in relation to his employer’s or principal’s affairs; or
    2. Confers, agrees, or offers to confer any benefit upon any fiduciary without the consent of the beneficiary, with intent to influence the fiduciary to act or conduct himself contrary to his fiduciary obligation.
  2. A person is guilty of a class C felony if he knowingly solicits, accepts, or agrees to accept any benefit, the giving of which is prohibited under subsection 1.

Source: S.L. 1973, ch. 116, § 12.

Cross-References.

Penalty for class C felony, see N.D.C.C. § 12.1-32-01.

Collateral References.

Validity and construction of statutes punishing commercial bribery, 1 A.L.R.3d 1350.

Federal regulation of competitive practices in liquor industry under sec. 5 of Federal Alcohol Administration Act (27 USCS sec. 205), 58 A.L.R. Fed. 797.

12.1-12-09. Definitions for chapter.

In this chapter, “thing of value” and “thing of pecuniary value” do not include (1) salary, fees, and other compensation paid by the government in consideration for which the official action or legal duty is performed; or (2) concurrence in official action in the course of legitimate compromise among public servants, except as provided in section 9 of article IV or section 10 of article V of the Constitution of North Dakota.

Source: S.L. 1973, ch. 116, § 12; 1989, ch. 69, § 7; 2009, ch. 65, § 2.

CHAPTER 12.1-13 Confidential Information — Conflict of Interest — Impersonation

12.1-13-01. Disclosure of confidential information provided to government.

A person is guilty of a class C felony if, in knowing violation of a statutory duty imposed on him as a public servant, he discloses any confidential information which he has acquired as a public servant. “Confidential information” means information made available to the government under a governmental assurance of confidence as provided by statute.

Source: S.L. 1973, ch. 116, § 13; 1975, ch. 116, § 11.

Cross-References.

Grand jury proceedings, duty of secrecy, see N.D.C.C. §§ 29-10.1-30, 29-10.1-32, N.D.R.Ct. 6.10.

Power of court to order disclosure by grand jurors, see N.D.C.C. § 29-10.1-31.

12.1-13-02. Speculating or wagering on official action or information.

  1. A person is guilty of a class A misdemeanor if during employment as a public servant, or within one year thereafter, in contemplation of official action by himself as a public servant or by a government agency with which he is or has been associated as a public servant, or in reliance on information to which he has or had access only in his capacity as a public servant, he:
    1. Acquires a pecuniary interest in any property, transaction, or enterprise which may be affected by such information or official action;
    2. Speculates or wagers on the basis of such information or official action; or
    3. Aids another to do any of the foregoing.
  2. A person is guilty of a class A misdemeanor if as a public servant he takes official action which is likely to benefit him as a result of an acquisition of a pecuniary interest in any property, transaction, or enterprise, or of a speculation or wager, which he made, or caused or aided another to make, in contemplation of such official action.

Source: S.L. 1973, ch. 116, § 13.

Cross-References.

Penalty for class A misdemeanor, see N.D.C.C. § 12.1-32-01.

12.1-13-03. Public servant’s interest in public contracts.

  1. Every public servant authorized to sell or lease any property, or to make any contract in his official capacity, alone or in conjunction with other public servants, who voluntarily becomes interested individually in the sale, lease, or contract, directly or indirectly, is guilty of a class A misdemeanor.
  2. Subsection 1 shall not apply to:
    1. Contracts of purchase or employment between a political subdivision and an officer of that subdivision, if the contracts are first unanimously approved by the other members at a meeting of the governing body of the political subdivision, and a unanimous finding is entered in the official minutes of that body that the contract is necessary because the services or property contracted for are not otherwise obtainable at equal cost.
    2. Sales, leases, or contracts entered into between school boards and school board members or school officers.

Source: S.L. 1973, ch. 116, § 13.

Cross-References.

Penalty for class A misdemeanor, see N.D.C.C. § 12.1-32-01.

DECISIONS UNDER PRIOR LAW

Analysis

Personal Interest.

The interest contemplated by the statute may have been either direct or indirect but it must have been an interest that accrued to the officer personally and not in a representative capacity such as that of receiver, trustee, or administrator. State v. Robinson, 71 N.D. 463, 2 N.W.2d 183, 1942 N.D. LEXIS 80 (N.D. 1942).

Whether a public officer, who was a stockholder and officer of a corporation with which he made a contract in his official capacity, was interested individually, directly or indirectly, in the contract was primarily a question of fact. State v. Robinson, 71 N.D. 463, 2 N.W.2d 183, 1942 N.D. LEXIS 80 (N.D. 1942).

Purchase Contract.

The purchase of commodities or supplies necessary and essential to the operation of vehicles used by employees of the motor vehicle department came within the terms of former section relating to personal interest in contract by public officer. State v. Robinson, 71 N.D. 463, 2 N.W.2d 183, 1942 N.D. LEXIS 80 (N.D. 1942).

Township Officers.

Although N.D.C.C. § 58-05-12 applied specifically to township officers, they were nevertheless public officers within the meaning of former section relating to a public servant’s interest in public contracts, and subject to its provisions. State v. Pyle, 71 N.W.2d 342, 1955 N.D. LEXIS 120 (N.D. 1955).

“Voluntarily.”

Trial court’s instruction defining the word “voluntarily” as an act done or performed willingly or intentionally as distinguished, from being done under compulsion or coercion was not erroneous and it was the province of the jury to determine from the evidence whether the contract was entered into voluntarily or involuntarily. State v. Pyle, 71 N.W.2d 342, 1955 N.D. LEXIS 120 (N.D. 1955).

12.1-13-04. Impersonating officials.

  1. A person is guilty of an offense if he falsely pretends to be:
    1. A public servant, other than a law enforcement officer, and acts as if to exercise the authority of such public servant.
    2. A public servant or a former public servant and thereby obtains a thing of value.
    3. A law enforcement officer.
  2. It is no defense to prosecution under this section that the pretended capacity did not exist or the pretended authority could not legally or otherwise have been exercised or conferred.
  3. An offense under subdivision b or c of subsection 1 is a class A misdemeanor. An offense under subdivision a of subsection 1 is a class B misdemeanor.

Source: S.L. 1973, ch. 116, § 13; 1975, ch. 116, § 12.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Impersonation of patrolman, see N.D.C.C. § 39-03-11.

Unlawful wearing of military uniforms and devices indicating rank, see N.D.C.C. § 37-01-16.

DECISIONS UNDER PRIOR LAW

Failure to Take Oath.

Failure to take and file the required oath of office ipso facto created a vacancy in such office and worked a forfeiture of all right to the office involved. State ex rel. Johnson v. Cahill, 49 N.D. 895, 193 N.W. 938, 1923 N.D. LEXIS 31 (N.D. 1923).

CHAPTER 12.1-14 Official Oppression — Elections — Civil Rights

12.1-14-01. Official oppression.

A person acting or purporting to act in an official capacity or taking advantage of such actual or purported capacity is guilty of a class A misdemeanor if, knowing that his conduct is illegal, he:

  1. Subjects another to arrest, detention, search, seizure, mistreatment, dispossession, assessment, lien, or other infringement of personal or property rights; or
  2. Denies or impedes another in the exercise or enjoyment of any right, privilege, power, or immunity.

Source: S.L. 1973, ch. 116, § 14.

Cross-References.

Penalty for class A misdemeanor, see N.D.C.C. § 12.1-32-01.

DECISIONS UNDER PRIOR LAW

Analysis

Burden of Proof.

One suing for malicious prosecution had to show malice and want of probable cause. Lux v. Bendewald, 58 N.D. 761, 227 N.W. 550, 1922 N.D. LEXIS 2 (N.D. 1922).

Proof of Malice.

Malice could be inferred from lack of probable cause, and proof that the defendant himself committed the act for which he instituted criminal proceedings against the plaintiff showed want of probable cause and authorized the inference of malice. Lux v. Bendewald, 58 N.D. 761, 227 N.W. 550, 1922 N.D. LEXIS 2 (N.D. 1922).

12.1-14-02. Interference with elections.

A person is guilty of a class A misdemeanor if, whether or not acting under color of law, the person, by force or threat of force or by economic coercion, intentionally:

  1. Injures, intimidates, or interferes with another because the other individual is or has been voting for any candidate or issue or qualifying to vote, qualifying or campaigning as a candidate for elective office, or qualifying or acting as an election official or an election observer, in any primary, special, or general election.
  2. Injures, intimidates, or interferes with another in order to prevent that individual or any other individual from voting for any candidate or issue or qualifying to vote, qualifying or campaigning as a candidate for elective office, or qualifying or acting as an election official or an election observer, in any primary, special, or general election.

Source: S.L. 1973, ch. 116, § 14; 2015, ch. 162, § 2, effective August 1, 2015.

Cross-References.

Interference with elections, offenses and penalties, see N.D.C.C. § 16.1-01-12.

Penalty for class A misdemeanor, see N.D.C.C. § 12.1-32-01.

DECISIONS UNDER PRIOR LAW

Analysis

Evidence of Intent.

Evidence that defendant had misstated the name of the candidate voted for thirty-eight times in reading the votes for one office from one precinct, supported a finding that the misstatements were intentional and not accidental. State v. Krueger, 124 N.W.2d 468, 1963 N.D. LEXIS 121 (N.D. 1963).

“Willfully.”

“Willfully” as used in former section meant “intentional and not accidental”, and that the wrongdoer acted with intent to do the act charged. State v. Krueger, 124 N.W.2d 468, 1963 N.D. LEXIS 121 (N.D. 1963).

12.1-14-03. Safeguarding elections.

A person is guilty of a class A misdemeanor if, in connection with any election, he:

  1. Makes or induces any false voting registration;
  2. Offers, gives, or agrees to give a thing of pecuniary value to another as consideration for the recipient’s voting or withholding his vote or voting for or against any candidate or issue or for such conduct by another;
  3. Solicits, accepts, or agrees to accept a thing of pecuniary value as consideration for conduct prohibited under subsection 1 or 2; or
  4. Otherwise obstructs or interferes with the lawful conduct of such election or registration therefor.

As used in this section, “thing of pecuniary value” shall include alcoholic beverages, by the drink or in any other container.

Source: S.L. 1973, ch. 116, § 14; 1975, ch. 116, § 13.

Cross-References.

Penalty for class A misdemeanor, see N.D.C.C. § 12.1-32-01.

Supervision of elections, see N.D.C.C. § 16.1-01-01.

DECISIONS UNDER PRIOR LAW

Information Sufficient.

The returns contemplated by the statute were the results disclosed by the tally books kept by the clerks, and an information charging a judge of election with making a false canvass of votes by misreading ballots and names of candidates thereon to clerks of election recording votes contained a sufficient statement of facts to apprise the defendant of the offense charged. State v. Wicks, 68 N.D. 1, 276 N.W. 690, 1937 N.D. LEXIS 123 (N.D. 1937).

Collateral References.

Solicitation or receipt of funds by public officer or employee for political campaign expenses or similar purposes as bribery, 55 A.L.R.2d 1137.

Effect of alleged misstatements or misrepresentations in campaign literature, material, or leaflets on validity of representation election, 3 A.L.R.3d 889.

Manner of marking ballot as affecting validity of employee’s vote in elections under Labor Relations Acts, 11 A.L.R.3d 818.

12.1-14-04. Discrimination in public places.

A person is guilty of a class B misdemeanor if, whether or not acting under color of law, he, by force, or threat of force or by economic coercion, intentionally:

  1. Injures, intimidates, or interferes with another because of his sex, race, color, religion, or national origin and because he is or has been exercising or attempting to exercise his right to full and equal enjoyment of any facility open to the public.
  2. Injures, intimidates, or interferes with another because of his sex, race, color, religion, or national origin in order to intimidate him or any other person from exercising or attempting to exercise his right to full and equal enjoyment of any facility open to the public.

Source: S.L. 1973, ch. 116, § 14.

Cross-References.

Equal pay for men and women, see N.D.C.C. § 34-06.1-09.

Penalty for class B misdemeanor, see N.D.C.C. § 12.1-32-01.

Collateral References.

Place of public entertainment or amusement, exclusion of person (for reason other than color or race) from, 1 A.L.R.2d 1165.

Businesses or establishments falling within state civil rights statute provisions prohibiting discrimination, 87 A.L.R.2d 120.

Racial or religious discrimination in furnishing of public utilities, services, or facilities, 58 A.L.R.3d 1027.

Trailer park as place of public accomodation within meaning of state civil rights statutes, 70 A.L.R.3d 1142.

State law prohibiting sex discrimination as violated by dress or grooming requirements for customers of establishments serving food or beverages, 89 A.L.R.3d 7.

Propriety of exclusion of persons from horseracing tracks for reasons other than color or race, 90 A.L.R.3d 1361.

Exclusion of one sex from admission to or enjoyment of equal privileges in places of accommodation or entertainment as actionable sex discrimination under state law, 38 A.L.R.4th 339.

Propriety of exclusion of persons from horseracing tracks for reasons other than color or race, 64 A.L.R.5th 769.

What constitutes private club or association not otherwise open to public that is exempt from state civil rights statute, 83 A.L.R.5th 467.

12.1-14-05. Preventing exercise of civil rights — Hindering or preventing another aiding third person to exercise civil rights.

A person is guilty of a class B misdemeanor if, whether or not acting under color of law, he, by force or threat of force or by economic coercion, intentionally:

  1. Injures, intimidates, or interferes with another because he is or is about to exercise his civil rights, or because he has exercised his civil rights.
  2. Intimidates or prevents another from aiding a third person to exercise his civil rights.

Source: S.L. 1973, ch. 116, § 14.

Cross-References.

Penalty for class B misdemeanor, see N.D.C.C. § 12.1-32-01.

Collateral References.

Blockbusting: validity and construction of anti-blockbusting regulations as designed to prevent brokers from inducing sales of realty because of actual or rumored entry of racial group in neighborhood, 34 A.L.R.3d 1432.

Aliens: constitutionality of enactment or regulation prohibiting employment of aliens in public employment or on public works, 38 A.L.R.3d 1213.

Construction and operation of “equal opportunities clause” requiring pledge against racial discrimination in hiring under construction contract, 44 A.L.R.3d 1283.

Intoxicating liquors: validity and construction of statute or ordinance respecting employment of women in places where intoxicating liquors are sold, 46 A.L.R.3d 369.

Prohibition, under state civil rights laws, of racial discrimination in rental of privately owned residential property, 96 A.L.R.3d 497.

Enforceability of bylaw or other rule of condominium or co-operative association restricting occupancy by children, 100 A.L.R.3d 241.

What constitutes employment discrimination on basis of marital status for purposes of state civil rights laws, 44 A.L.R.4th 1044.

Accommodation requirement under state legislation forbidding job discrimination on account of handicap, 76 A.L.R.4th 310.

Handicap as job disqualification under state legislation forbidding job discrimination on account of handicap, 78 A.L.R.4th 265.

Damages and other relief under state legislation forbidding job disqualification on account of handicap, 78 A.L.R.4th 435.

Discrimination “because of handicap” or “on the basis of handicap” under state statutes prohibiting job discrimination on account of handicap, 81 A.L.R.4th 144.

What constitutes handicap under state legislation forbidding job discrimination on account of handicap, 82 A.L.R.4th 26.

Availability and Scope of Punitive Damages Under State Employment Discrimination Law, 81 A.L.R.5th 367.

Individual liability of supervisors, managers, officers or co-employees for discriminatory actions under state Civil Rights Act,Civil Rights Act, 83 A.L.R.5th 1.

Preemption of state statute, law, ordinance, or policy with respect to employment- and education-related issues involving aliens, 88 A.L.R.6th 627.

CHAPTER 12.1-15 Defamation — Interception of Communications

12.1-15-01. Criminal defamation.

  1. A person is guilty of a class A misdemeanor if he willfully publishes defamatory matter or knowingly procures such publication or in any way knowingly aids or assists in the same being done.
  2. It is a defense to a prosecution under this section that:
    1. The matter alleged to be defamatory is true; or
    2. The matter alleged to be defamatory was contained in a privileged communication.
  3. In this section:
    1. “Defamatory matter” means any written or oral communication concerning a natural person made public with actual malice or with reckless disregard of the truth by any utterance, printing, writing, sign, picture, representation, or effigy tending to expose such person to public hatred, contempt, or ridicule or to deprive him of the benefits of public confidence and social intercourse or any written or oral communication concerning a natural person made public as aforesaid designed to blacken and vilify the memory of one who is dead and tending to scandalize or provoke his surviving relatives and friends.
    2. “Privileged communication” means a communication made to a person entitled to or interested in the communication by one who is also entitled to or interested or who stood in such relation to the former as to afford a reasonable ground for supposing his motive innocent.
    3. “Publication” means a knowing display of defamatory matter, or the parting with its immediate custody under circumstances which exposed the defamatory matter to be read or seen or understood by a person other than the publisher of the defamatory matter, although it is not necessary that the matter complained of should have been seen or read by another.

Source: S.L. 1973, ch. 116, § 15.

Cross-References.

Civil libel, definition, see N.D.C.C. § 14-02-03.

Civil slander, definition, see N.D.C.C. § 14-02-03.

Libel or slander of bank, safe deposit, annuity, surety, or trust company, see N.D.C.C. § 6-08-15.

Penalty for class A misdemeanor, see N.D.C.C. § 12.1-32-01.

DECISIONS UNDER PRIOR LAW

Circumstances Surrounding Publication.

Statute does not prohibit testimony explaining circumstances surrounding publication of allegedly libelous writing; where accused was charged with giving $20 check to performer who was not member of musicians’ union for one dance job and, after it had cleared bank, writing “two dance jobs” on check so as to make it appear that union member had twice accepted employment for less than minimum union wage scale, it was not error to permit testimony going to proof of libelous nature of words written on canceled check. State v. Haider, 150 N.W.2d 71, 1967 N.D. LEXIS 137 (N.D. 1967).

Gist of Libel.

The gist of the crime of criminal libel was malicious defamation of a person made public in one or more of the modes prescribed and tending to expose such person to public hatred, contempt, or ridicule. State v. Tolley, 23 N.D. 284, 136 N.W. 784, 1912 N.D. LEXIS 94 (N.D. 1912).

Privilege.

Evidence relating to alleged altering of check, after it had cleared bank, so as to make it appear that union musician had twice accepted employment at less than minimum union wage scale was not sufficient to bring defendant-maker within privilege contained in former section; since no witnesses were called on behalf of accused and no evidence was submitted by him, malice was presumed. State v. Haider, 150 N.W.2d 71, 1967 N.D. LEXIS 137 (N.D. 1967).

Special Verdict.

Court was without power to require special verdict in criminal libel case. State v. Tolley, 23 N.D. 284, 136 N.W. 784, 1912 N.D. LEXIS 94 (N.D. 1912).

Collateral References.

Joint criminal liability for slander, 26 A.L.R.2d 1031.

Criminal liability of partners or partnership for libel, 88 A.L.R.2d 479 3001.

Criticism or disparagement of physician’s or dentist’s character, competence, or conduct as defamation, 38 A.L.R.4th 836.

Defamation of psychiatrist, psychologist, or counselor, 38 A.L.R.4th 874.

Defamation: Application of New York Times and related standards to nonmedia defendants, 38 A.L.R.4th 1114.

Defamation: Privilege accorded state or local governmental administrative records relating to private individual member of public, 40 A.L.R.4th 318.

Defamation action as surviving plaintiff’s death, under statute not specifically covering action, 42 A.L.R.4th 272.

Excessiveness or inadequacy of compensatory damages for defamation, 49 A.L.R.4th 1158.

Defamation: Who is “libel-proof”, 50 A.L.R.4th 1257.

Defamation of professional athlete or sports figure, 54 A.L.R.4th 869.

Validity of criminal defamation statutes, 68 A.L.R.4th 1014.

12.1-15-02. Interception of wire or oral communications — Eavesdropping.

  1. A person is guilty of a class C felony if he:
    1. Intentionally intercepts any wire or oral communication by use of any electronic, mechanical, or other device; or
    2. Intentionally discloses to any other person or intentionally uses the contents of any wire or oral communication, knowing that the information was obtained through the interception of a wire or oral communication.
  2. A person is guilty of a class A misdemeanor if he secretly loiters about any building with intent to overhear discourse or conversation therein and to repeat or publish the same with intent to vex, annoy, or injure others.
  3. It is a defense to a prosecution under subsection 1 that:
    1. The actor was authorized by law to intercept, disclose, or use, as the case may be, the wire or oral communication.
    2. The actor was:
      1. A person acting under color of law to intercept a wire or oral communication, and
      2. He was a party to the communication or one of the parties to the communication had given prior consent to such interception.
      1. The actor was a party to the communication or one of the parties to the communication had given prior consent to such interception, and
      2. Such communication was not intercepted for the purpose of committing a crime or other unlawful harm.

Source: S.L. 1973, ch. 116, § 15.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Disclosing telegraph and telephone messages, see N.D.C.C. § 8-10-09.

Interruption or impairment of a public communication, see N.D.C.C. § 12.1-21-06.

Unlawful use of telecommunications devices, see N.D.C.C. § 8-10-07.2.

Notes to Decisions

Defense.

Where the individuals solicited by private investigator to telephone the defendant clinic knew they were being recorded and consented to the recording, that consent is sufficient to implement subdivision (3)(c) of this section. Fargo Women's Health Org. v. Larson, 391 N.W.2d 627, 1986 N.D. LEXIS 376 (N.D. 1986).

Collateral References.

Validity, construction, and effect of state legislation making wire tapping a criminal offense, 74 A.L.R.2d 855.

Interception: what constitutes an “interception” of a telephone or similar communication forbidden by the Federal Communications Act [47 USCS § 605] or similar state statutes, 9 A.L.R.3d 423.

Eavesdropping as violating right of privacy, 11 A.L.R.3d 1296.

Propriety of governmental eavesdropping on communications between accused and his attorney, 44 A.L.R.4th 841.

Eavesdropping on extension telephone as invasion of privacy, 49 A.L.R.4th 430.

12.1-15-03. Traffic in intercepting devices.

  1. A person is guilty of a class C felony if, within this state, he manufactures, assembles, possesses, transports, or sells an electronic, mechanical, or other device, knowing that the design of such device renders it primarily useful to the purpose of the surreptitious interception of wire or oral communications.
  2. A person is guilty of a class A misdemeanor if he places, in a newspaper, magazine, handbill, or other publication published in this state, an advertisement of an electronic, mechanical, or other device, knowing that the design of such device renders it primarily useful for surreptitious interception of wire or oral communications, or knowing that such advertisement promotes the use of such device for surreptitious interception of wire or oral communications.
  3. It is a defense to a prosecution under this section that the actor was:
    1. An officer, agent, or employee of, or a person under contract with, a communications common carrier, acting within the normal course of the business of the communications common carrier; or
    2. A public servant acting in the course of his official duties or a person acting within the scope of a government contract made by a person acting in the course of his official duties.

Source: S.L. 1973, ch. 116, § 15.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

12.1-15-04. Definitions.

In sections 12.1-15-02 through 12.1-15-04:

  1. “Communications common carrier” shall have the meaning prescribed for the term “common carrier” by section 8-07-01.
  2. “Contents”, when used with respect to any wire or oral communication, includes any information concerning the identity of the parties to such communication or the existence, substance, purport, or meaning of that communication.
  3. “Electronic, mechanical, or other device” means any device or apparatus which can be used to intercept a wire or oral communication other than:
    1. Any telephone or telegraph instrument, equipment, or facility, or any component thereof, (1) furnished to the subscriber or user by a communications common carrier in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business; or (2) being used by a communications common carrier in the ordinary course of its business, or by an investigative or law enforcement officer in the ordinary course of his duties.
    2. A hearing aid or similar device being used to correct subnormal hearing to not better than normal.
  4. “Intercept” means the aural acquisition of the contents of any wire or oral communication through the use of an electronic, mechanical, or other device, or by secretly overhearing the communication.
  5. “Oral communication” means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation.
  6. “Wire communication” means any communication made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception furnished or operated by any person engaged as a common carrier in providing or operating such facilities for the transmission of communications.

Source: S.L. 1973, ch. 116, § 15.

12.1-15-05. Interception of correspondence.

  1. A person is guilty of a class A misdemeanor if, knowing that a letter, postal card, or other written private correspondence has not yet been delivered to the person to whom it is directed, and knowing that he does not have the consent of the sender or receiver of the correspondence, he:
    1. Damages or destroys the correspondence with intent to prevent its delivery;
    2. Opens or reads sealed correspondence with intent to discover its contents; or
    3. Knowing that sealed correspondence has been opened or read in violation of subdivision b, intentionally divulges its contents, in whole or in part, or a summary of any portion thereof.

Source: S.L. 1973, ch. 116, § 15.

Cross-References.

Penalty for class A misdemeanor, see N.D.C.C. § 12.1-32-01.

12.1-15-06. Implanting microchips prohibited.

A person may not require that an individual have inserted into that individual’s body a microchip containing a radio frequency identification device. A violation of this section is a class A misdemeanor.

Source: S.L. 2007, ch. 122, § 1.

Cross-References.

Penalty for class A misdemeanor, see N.D.C.C. § 12.1-32-01.

CHAPTER 12.1-16 Homicide

12.1-16-01. Murder.

  1. A person is guilty of murder, a class AA felony, if the person:
    1. Intentionally or knowingly causes the death of another human being;
    2. Causes the death of another human being under circumstances manifesting extreme indifference to the value of human life; or
    3. Acting either alone or with one or more other persons, commits or attempts to commit treason, robbery, burglary, kidnapping, felonious restraint, arson, gross sexual imposition, a felony offense against a child under section 12.1-20-03, 12.1-27.2-02, 12.1-27.2-03, 12.1-27.2-04, or 14-09-22, or escape and, in the course of and in furtherance of such crime or of immediate flight therefrom, the person or any other participant in the crime causes the death of any person. In any prosecution under this subsection in which the defendant was not the only participant in the underlying crime, it is an affirmative defense that the defendant:
      1. Did not commit the homicidal act or in any way solicit, command, induce, procure, counsel, or aid the commission thereof;
      2. Was not armed with a firearm, destructive device, dangerous weapon, or other weapon which under the circumstances indicated a readiness to inflict serious bodily injury;
      3. Reasonably believed that no other participant was armed with such a weapon; and
      4. Reasonably believed that no other participant intended to engage in conduct likely to result in death or serious bodily injury.
  2. A person is guilty of murder, a class A felony, if the person causes the death of another human being under circumstances which would be class AA felony murder, except that the person causes the death under the influence of extreme emotional disturbance for which there is reasonable excuse. The reasonableness of the excuse must be determined from the viewpoint of a person in that person’s situation under the circumstances as that person believes them to be. An extreme emotional disturbance is excusable, within the meaning of this subsection only, if it is occasioned by substantial provocation, or a serious event, or situation for which the offender was not culpably responsible.

Subdivisions a and b are inapplicable in the circumstances covered by subsection 2.

Source: S.L. 1973, ch. 116, § 16; 1973, ch. 117, § 2; 1975, ch. 116, § 14; 1979, ch. 177, § 1; 1985, ch. 174, § 1; 1993, ch. 118, § 1.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Dangerous special offenders, extended sentences, N.D.C.C. § 12.1-32-09.

Intestate succession, wills, and related matters, effect of homicide on, see N.D.C.C. § 30.1-10-03.

Jurisdiction of murder, see N.D.C.C. § 29-03-18.

Limitation of time for commencing prosecution for murder, see N.D.C.C. § 29-04-01.

Sentencing of violent offenders, see N.D.C.C. § 12.1-32-09.1.

Notes to Decisions

Constitutionality.
—Equal Protection.

The grading phrase “extreme indifference to the value of human life” is an understandable and distinct definition of the conduct prohibited by subsection 1 of this section, and is a reasonable and rational method of distinguishing the greater crime of class AA murder from the lesser crime of class B manslaughter (N.D.C.C. § 12.1-16-02); therefore, there is no arbitrary discrimination between classes similarly situated that is prohibited by the Equal Protection Clause of the Fourteenth Amendment. Frey v. State, 509 N.W.2d 261, 1993 N.D. LEXIS 230 (N.D. 1993).

—Vagueness Doctrine.

This section is not void for vagueness. Frey v. State, 509 N.W.2d 261, 1993 N.D. LEXIS 230 (N.D. 1993).

Elements.

District court erred in summarily dismissing defendant’s application for postconviction relief because, while defendant failed to demonstrate that he received ineffective assistance of counsel, at the time of defendant’s trial, it was not clearly established that attempted knowing murder was a non-cognizable offense. Yoney v. State, 2021 ND 132, 962 N.W.2d 617, 2021 N.D. LEXIS 131 (N.D. 2021).

Accomplice to Extreme Indifference Murder.

Inmate’s claim that the charge of accomplice to commit murder was not a cognizable criminal offense in North Dakota lacked merit because, under the factual situation presented, the inmate could be charged with accomplice to extreme indifference murder by agreeing to willfully aid in the aggravated assault upon the victim under circumstances manifesting extreme indifference to the value of human life. Olson v. State, 2019 ND 135, 927 N.W.2d 444, 2019 N.D. LEXIS 138 (N.D. 2019).

Attempted Murder.
—In General.

Where defendant retrieved his 9 mm handgun, loaded the weapon, and repeatedly fired through the bedroom door and walls at police officers located on the other side and a police officer was shot in the leg, defendant’s conduct in shooting at the police officers sufficiently constituted a substantial step toward the commission of the crime of murder to justify his conviction of attempted murder. State v. Keller, 2005 ND 86, 695 N.W.2d 703, 2005 N.D. LEXIS 94 (N.D. 2005).

Defendant’s convictions for attempted murder in violation of N.D.C.C. §§ 12.1-06-01(1) and 12.1-16-01 and reckless endangerment were appropriate based on defendant’s statements to a detective after the accident in which defendant tried to kill himself and his girlfriend. Defendant had told the detective that defendant “snapped” and that he floor-boarded the car and said that he was angling to collide with a semi tractor-trailer. State v. Frohlich, 2007 ND 45, 729 N.W.2d 148, 2007 N.D. LEXIS 41 (N.D. 2007).

Petitioner’s attempted murder conviction was not a cognizable offense because attempt required an intent to complete the commission of the underlying crime, and murder under circumstances manifesting an extreme indifference to the value of human life results in an unintentional death. Dominguez v. State, 2013 ND 249, 840 N.W.2d 596, 2013 N.D. LEXIS 238 (N.D. 2013).

Because the attempted murder instruction options required the jury to find that petitioner intentionally attempted to murder a police officer, the jury could not him guilty of the incognizable offense of attempted murder. Keller v. State, 2015 ND 228, 869 N.W.2d 424, 2015 N.D. LEXIS 245 (N.D. 2015).

Attempting to cause the death of someone significantly differs from intentionally engaging in conduct which constitutes a step towards causing the death of another human being; attempting to cause the death of someone amounts to intentional attempted murder. Keller v. State, 2015 ND 228, 869 N.W.2d 424, 2015 N.D. LEXIS 245 (N.D. 2015).

Defendant failed to establish all the requirements to support a claim of obvious error because the amendment of the information did not modify the facts upon which the State sought to prove the attempted murder charge; the timing of the amendment, immediately prior to trial, was not per se substantially prejudicial. State v. Pemberton, 2019 ND 157, 930 N.W.2d 125, 2019 N.D. LEXIS 165 (N.D. 2019).

—Lesser Included Offenses.

Aggravated assault under subsections 1, 2, and 3 of N.D.C.C. § 12.1-17-02, which require a bodily injury be suffered by the victim, is not a lesser included offense of attempted murder; however, aggravated assault under subsection 4 of N.D.C.C. § 12.1-17-02, which does not require a bodily injury be suffered by the victim, can be a lesser included offense of attempted murder. State v. Sheldon, 301 N.W.2d 604, 1980 N.D. LEXIS 342 (N.D. 1980), cert. denied, 450 U.S. 1002, 101 S. Ct. 1711, 68 L. Ed. 2d 204, 1981 U.S. LEXIS 1398 (U.S. 1981).

Trial court did not err in refusing to give an instruction on aggravated assault as a lesser included offense of attempted murder where the charge against the defendant did not allege that he fired a firearm or hurled a destructive device at the victim as provided for in subsection (4) of N.D.C.C. § 12.1-17-02, and where the State was only required to prove that defendant intentionally engaged in conduct which constituted a substantial step toward the commission of a crime and not that the victim suffered a bodily injury as required by a charge of aggravated assault. State v. Ellis, 2001 ND 84, 625 N.W.2d 544, 2001 N.D. LEXIS 89 (N.D. 2001).

Where defendant was charged with attempted murder for his involvement in a police shoot-out, the trial court did not err in refusing to give the jury instructions on criminal facilitation. Because it is possible to commit criminal attempt without assisting another, criminal facilitation is not a lesser included offense of attempted murder. State v. Keller, 2005 ND 86, 695 N.W.2d 703, 2005 N.D. LEXIS 94 (N.D. 2005).

Where defendant was charged with attempted murder for his involvement in a police shoot-out, the trial court properly denied his requested instruction on reckless endangerment as an included offense. A person can be convicted of attempted murder for having taken a substantial step toward commission of the crime of murder even if there never was a substantial risk of serious bodily injury or death to another as required for reckless endangerment; in this case, defendant was properly convicted of both offenses for firing shots at police officers. State v. Keller, 2005 ND 86, 695 N.W.2d 703, 2005 N.D. LEXIS 94 (N.D. 2005).

Burden of Proof.

The trial court was not required to instruct the jury that, in order to find defendant guilty of murder under subsection 1 of this section, the state was required to prove the absence of extreme emotional disturbance for which there is reasonable excuse, under subsection 2 of this section. State v. Frey, 441 N.W.2d 668, 1989 N.D. LEXIS 111 (N.D. 1989).

Conspiracy to Commit Murder.

Where defendant and his co-conspirator were involved in illegal drugs and carried out a police shoot-out as part of a plan to avoid being arrested, the evidence was sufficient to establish overt acts in furtherance of that agreement; defendant was properly convicted of conspiracy to commit murder. During the shoot-out, his co-conspirator was killed. State v. Keller, 2005 ND 86, 695 N.W.2d 703, 2005 N.D. LEXIS 94 (N.D. 2005).

Charge of conspiracy to commit murder under N.D.C.C. §§ 12.1-06-04 and 12.1-16-01(1)(b) was not a cognizable offense because conspiracy was a specific intent crime requiring intent to agree and intent to achieve a particular result that was criminal. State v. Borner, 2013 ND 141, 836 N.W.2d 383, 2013 N.D. LEXIS 151 (N.D. 2013).

Rule was applied to avoid manifest injustice and provide defendant with the same relief granted his codefendant because in the codefendant’s trial, the trial court obviously erred when it failed to require proof of an essential element of the offense and failed to recognize the information was defective; defendant was also prejudiced by the error, and to deny him the relief granted his codefendant would seriously affected the fairness, integrity, and public reputation of the criminal jury trial. State v. Whitman, 2013 ND 183, 838 N.W.2d 401, 2013 N.D. LEXIS 196 (N.D. 2013).

Evidence was sufficient to support a conviction for conspiracy to commit murder because the jury could have believed that defendant and another person were serious when a statement was made that they were so mad that they could kill someone, especially given their conduct during a killing. Defendant's actions during the murder and his subsequent conduct to clean up or conceal the crime satisfied the definition of an objective of the conspiracy. State v. Clark, 2015 ND 201, 868 N.W.2d 363, 2015 N.D. LEXIS 215 (N.D. 2015).

Under judicial precedent, a charge of conspiracy to commit murder required the State to prove an intent to cause the death of another human being, and conspiracy to commit extreme indifference murder, under N.D.C.C. §§ 12.1-06-04 and 12.1-16-01(1)(b), was not a cognizable offense. State v. Swanson, 2019 ND 181, 930 N.W.2d 645, 2019 N.D. LEXIS 185 (N.D. 2019).

Because the inclusion of knowingly in the jury instruction allowed the jury to convict defendant of conspiracy to commit murder without an intent to cause the death of another human being, the instruction was improper and allowed defendant to have potentially been convicted of a non-cognizable offense. State v. Swanson, 2019 ND 181, 930 N.W.2d 645, 2019 N.D. LEXIS 185 (N.D. 2019).

—Lesser Included Offenses.

Where defendant was charged with conspiracy to commit murder, the trial court did not err in refusing to give the jury instructions on criminal facilitation. Facilitation, by definition, is not a lesser included offense of conspiracy to commit murder, because it is possible to commit the crime of conspiracy without necessarily committing the crime of facilitation. State v. Keller, 2005 ND 86, 695 N.W.2d 703, 2005 N.D. LEXIS 94 (N.D. 2005).

Elements.

This section does not require that someone hit, shoot, or throw something at someone else in order to be guilty of murder; the section requires that a person intentionally or knowingly caused the death of another human being, and one can cause the death of another without hitting, shooting, or throwing something at the victim by engaging in conduct which contributes to or results in the death of that other person. State v. Morrissey, 295 N.W.2d 307, 1980 N.D. LEXIS 251 (N.D. 1980).

Evidence Sufficient.

There was competent evidence, viewed in the light most favorable to the verdict, to permit a jury to reasonably infer that a murder defendant caused the victim’s death either “intentionally or knowingly” or “under circumstances manifesting extreme indifference to the value of human life,” where the evidence indicated that the victim’s gunshot wounds were inconsistent with defendant’s claims of self-defense. State v. Frey, 441 N.W.2d 668, 1989 N.D. LEXIS 111 (N.D. 1989).

A rational factfinder could find plaintiff guilty beyond a reasonable doubt of having murdered victim and conclude that the evidence was legally sufficient to support the conviction. State v. Thiel, 515 N.W.2d 186, 1994 N.D. LEXIS 100 (N.D. 1994).

Circumstantial evidence was sufficient to support convictions for murder, gross sexual imposition, and burglary where the victim was sexually assaulted and murdered in her home, items of the victim’s property were found in defendant’s possession, DNA evidence and fingerprints implicated defendant, items belonging to defendant were found in the victim’s home, and defendant had injuries that were consistent with the victim’s attempt to defend herself. State v. Charette, 2004 ND 187, 687 N.W.2d 484, 2004 N.D. LEXIS 316 (N.D. 2004).

Defendant’s conviction for murder under N.D.C.C. § 12.1-16-01 was affirmed because he failed to object to the prosecutor’s comments on closing argument about portions of defendant’s audio-taped interview with a doctor that had not been admitted into evidence. Also defendant failed to show the prosecutor’s improper comments constituted plain error in light of the overwhelming evidence against defendant because the prosecutor did not refer to anything specific on the tapes, but merely made an isolated comment that there was more on the tapes that had not been heard. State v. Schmidkunz, 2006 ND 192, 721 N.W.2d 387, 2006 N.D. LEXIS 195 (N.D. 2006).

Sufficient evidence supported defendant’s murder conviction, because although there was no independent and direct evidence about the actual trigger person for the victim’s death, the combined and cumulative effect of the other independent evidence tended to connect defendant to the murder and corroborated the testimony of defendant’s wife. State v. Gaede, 2007 ND 125, 736 N.W.2d 418, 2007 N.D. LEXIS 124 (N.D. 2007).

Evidence was sufficient to support defendant’s conviction for attempted murder where defendant did not meet his burden of showing the evidence revealed no reasonable inference of guilt when viewed in the light most favorable to the verdict; there was testimony that he stabbed the victim with scissors, held a steak knife over her, and cut off her air supply and this evidence allowed the jury to draw an inference reasonably tending to prove defendant took a substantial step toward murdering the victim and fairly warranting his conviction. State v. Coppage, 2008 ND 134, 751 N.W.2d 254, 2008 N.D. LEXIS 132 (N.D. 2008).

There was sufficient circumstantial evidence for the jury to find defendant guilty of murder, including the DNA under the victim’s fingernails and on her shirt, the scratches on defendant’s hands, that defendant was a resident of the same apartment complex, and that he did not use his cell phone or computer during the time that the victim was allegedly killed. State v. Gibbs, 2009 ND 44, 763 N.W.2d 430, 2009 N.D. LEXIS 64 (N.D. 2009).

Evidence was sufficient to sustain a murder conviction because witnesses testified that they saw defendant chasing the victim, one saw defendant jump on the victim, tussle with him, and then run off, the victim said he had been stabbed, and defendant had blood on his clothes and hands when he was arrested that was consistent with the victim’s DNA. State v. Addai, 2010 ND 29, 778 N.W.2d 555, 2010 N.D. LEXIS 24 (N.D. 2010), overruled in part, State v. Decker, 2018 ND 43, 907 N.W.2d 378, 2018 N.D. LEXIS 56 (N.D. 2018).

Defendant’s conviction for attempted murder of a prosecutor, in violation of N.D.C.C. § 12.1-16-01(1)(a), was supported by the evidence because the jury heard evidence that defendant brought a loaded gun and three clips with 38 rounds of ammunition into a courtroom, stood in a “shooter’s stance” with two hands holding the gun pointed at the prosecutor’s chest, and pulled the trigger multiple times. State v. Chacano, 2013 ND 8, 826 N.W.2d 294, 2013 N.D. LEXIS 4 (N.D. 2013).

Sufficient evidence supported defendant’s conviction for attempted murder of a law enforcement officer because a reasonable jury could find (1) a shot fired in an officer’s direction was intended to kill the officer, even if the officer’s head was not in a bullet’s trajectory, and (2) defendant’s intent to kill an officer, based on defendant’s social media posts. State v. Wangstad, 2018 ND 217, 917 N.W.2d 515, 2018 N.D. LEXIS 250 (N.D. 2018).

District court properly dismissed defendant’s motion for an acquittal because there was sufficient evidence for the jury to convict him of murder and conclude he was not acting in self-defense where the evidence presented at trial included evidence that the victim’s death was the result of defendant shooting the victim in the back while the victim was walking away. State v. Eggleston, 2020 ND 68, 940 N.W.2d 645, 2020 N.D. LEXIS 59 (N.D. 2020).

Extreme Emotional Disturbance.

Where defendant raises evidence of extreme emotional disturbance, state is not required to prove nonexistence of extreme emotional disturbance for which there was reasonable excuse beyond a reasonable doubt in order for jury to convict defendant of murder; extreme emotional disturbance for which there is reasonable excuse is a mitigating factor that jury may consider if evidence of such a condition is raised, and not a defense to a charge of murder. State v. Dilger, 338 N.W.2d 87, 1983 N.D. LEXIS 373 (N.D. 1983).

Extreme emotional disturbance was not a defense to the crime of murder pursuant to N.D.C.C. § 12.1-16-01 and thus, the State was not required to prove the non-existence of an extreme emotional disturbance beyond a reasonable doubt. State v. Sorenson, 2009 ND 147, 770 N.W.2d 701, 2009 N.D. LEXIS 150 (N.D. 2009).

Guilty Plea.

By pleading guilty to class AA murder, defendant waived all nonjurisdictional defects and defenses, and admitted all elements of the crime. State v. Sisson, 1997 ND 158, 567 N.W.2d 839, 1997 N.D. LEXIS 177 (N.D. 1997).

Jury Instructions.

Where defendant was charged with murder in that he “intentionally” and “knowingly” caused the death of another human being, the giving of a jury instruction stating that “It is presumed, however, that an unlawful act was done with unlawful intent”, without qualifying or explaining how the jurors should interpret the presumption, was unconstitutional as a violation of due process of law. State v. Trieb, 315 N.W.2d 649, 1982 N.D. LEXIS 231 (N.D. 1982).

Where court instructed jury that a person is guilty of murder under this section if he: “1. Intentionally or knowingly causes the death of another human being; or 2. Willfully causes the death of another human being under circumstances manifesting extreme indifference to the value of human life,” assertion of word “willfully” did not make instruction misleading and was not error. State v. Halvorson, 346 N.W.2d 704, 1984 N.D. LEXIS 269 (N.D. 1984).

In a murder trial, the court did not err by refusing an instruction requested by defendant that possession of a firearm by the proprietor of a retail liquor establishment was not illegal, because the instruction concerned a “collateral matter” which would “only cause confusion of the real issues before the jury” where defendant was being tried for using the firearm, not possessing it. State v. Wiedrich, 460 N.W.2d 680, 1990 N.D. LEXIS 161 (N.D. 1990).

Once the trial court determined to instruct on self-defense and, despite defendant’s objection, to instruct on the lesser-included offense of manslaughter, it had an obligation, when the state failed to make the request, to also instruct on the lesser-included offense of negligent homicide, notwithstanding the lack of a request from defendant to do so. State v. Wiedrich, 460 N.W.2d 680, 1990 N.D. LEXIS 161 (N.D. 1990).

A negligent homicide instruction must be given when self-defense and manslaughter are issues in a murder case. State v. Gagnon, 1997 ND 153, 567 N.W.2d 807, 1997 N.D. LEXIS 172 (N.D. 1997).

A jury verdict of acquittal for murder and conviction for abuse or neglect of a child under N.D.C.C. §§ 12.1-16-01(1)(b), (c) and 14-09-22 could be rationally reconciled and did not represent inconsistent verdicts where the trial court instructed the jury on alternative theories of murder but used “and/or” language, which could have precluded the jury from considering whether defendant caused the child’s death while committing or attempting to commit a felony offense against a child. State v. McClary, 2004 ND 98, 679 N.W.2d 455, 2004 N.D. LEXIS 194 (N.D. 2004).

Jury instructions in defendant’s prosecution for attempted murder of a law enforcement officer did not obviously err because (1) an elements instruction did not ignore the required mens rea, (2) the instructions communicated the applicable statute’s meaning, and (3) the law was accurately described. State v. Wangstad, 2018 ND 217, 917 N.W.2d 515, 2018 N.D. LEXIS 250 (N.D. 2018).

Because the jury instructions as a whole adequately informed the jury of the applicable law and did not mislead or confuse the jury, it did not affect a substantial right, and defendant did not establish his claim that the instructions created obvious error; the jury was given the correct description of attempted murder twice in the instructions, which clearly directed the jury to consider whether defendant attempted to intentionally or knowingly cause the death of another human being. State v. Pemberton, 2019 ND 157, 930 N.W.2d 125, 2019 N.D. LEXIS 165 (N.D. 2019).

Lesser Included Offense.

Where defendant argued that the trial court should not have instructed the jury on the charge for abuse or neglect of a child on the ground that the jury could not have reasonably acquitted on the greater offense of felony murder, there was no obvious error. Neglect or abuse of a child is not a lesser included offense of felony murder under N.D.C.C. §§ 12.1-16-01(1)(c), 14-09-22; a felony murder charge does not require the defendant to have committed the underlying felony, and the underlying felony is not an included offense of felony murder. State v. McClary, 2004 ND 98, 679 N.W.2d 455, 2004 N.D. LEXIS 194 (N.D. 2004).

Defendant was not entitled to a new trial because the verdict was not legally inconsistent where the culpability required for both murder under N.D.C.C. § 12.1-16-01(1)(b) and aggravated assault under N.D.C.C. § 12.1-17-02(1) was willfully, and for attempt under N.D.C.C. § 12.1-06-01(1), the culpability level of the substantial step conduct was intentionally; the culpability requirements for the two crimes were not identical because conviction of attempted murder in this case also required proof of circumstances manifesting extreme indifference to the value of human life and intentionality of the substantial step conduct, but in order to convict an individual of aggravated assault, there was no need to prove an absence of circumstances manifesting an extreme indifference to the value of human life, nor was there a need to prove an absence of intentionality; therefore, the jury’s verdict finding defendant guilty of both crimes was not legally inconsistent. State v. Coppage, 2008 ND 134, 751 N.W.2d 254, 2008 N.D. LEXIS 132 (N.D. 2008).

Sentence.

Defendant’s sentence was not illegal because his sentence to life in prison without parole was within the limits prescribed by statute; defendant was was convicted of murder, a class AA felony. State v. Wilder, 2018 ND 93, 909 N.W.2d 684, 2018 N.D. LEXIS 102 (N.D. 2018).

Defendant was not entitled to be resentenced to probation because (1) any sentence available when defendant was originally sentenced could be imposed upon revocation of probation, (2) defendant could only receive two probation periods, defendant’s first period had been revoked, and defendant was serving a second period when probation was revoked, so the court could not sentence defendant to a third period, and (3) defendant’s sentence of life in prison with the possibility of parole, after his murder conviction, was within the statutory range. State v. Alberts, 2019 ND 66, 924 N.W.2d 96, 2019 N.D. LEXIS 67 (N.D. 2019).

DECISIONS UNDER PRIOR LAW

Constitutionality.

An act substituting the penitentiary for the county jail as the place of confinement pending execution, and directing that any execution shall take place within the penitentiary walls, did not operate to increase the punishment of one convicted of murder in the first degree with the death penalty affixed, and was not ex post facto as to one convicted before its passage. State v. Rooney, 12 N.D. 144, 95 N.W. 513, 1903 N.D. LEXIS 18 (N.D. 1903), aff'd, 196 U.S. 319, 25 S. Ct. 264, 49 L. Ed. 494, 1905 U.S. LEXIS 903 (U.S. 1905).

Allegations Constituting Second Degree Murder.

An information charging the unintentional killing of a human being while engaged in procuring a miscarriage which was not necessary to save the life of deceased, was sufficient to charge the offense of murder in the second degree. State v. Belyea, 9 N.D. 353, 83 N.W. 1, 1900 N.D. LEXIS 126 (N.D. 1900); State v. Reilly, 25 N.D. 339, 141 N.W. 720, 1913 N.D. LEXIS 116 (N.D. 1913).

Burglary.

This section did not require that the commission of a burglary required that something must actually have been taken or that there was a forceable entry. State v. Olson, 290 N.W.2d 664, 1980 N.D. LEXIS 215 (N.D. 1980).

Confession by Guilty Plea.

By a plea of guilty a defendant confessed the indictment to be wholly true, and, where an accused pleaded guilty to the charge of murder as charged in the indictment, the court could sentence him to death. Territory v. Miller, 29 N.W. 7, 4 Dakota 173, 1886 Dakota LEXIS 7 (Dakota 1886).

Definition.

—First Degree Murder.

Murder in the first degree was a willful, deliberate, and premeditated killing. Territory v. Bannigan, 46 N.W. 597, 1 Dakota 451, 1877 Dakota LEXIS 11 (Dakota 1877).

Felony Murder.

To constitute murder without design to cause death in the commission of a felony, death need not have occurred during its commission. State v. Shortridge, 54 N.D. 779, 211 N.W. 336, 1926 N.D. LEXIS 83 (N.D. 1926).

Inference of Intent.

Criminal intent was inferred from every malicious, deliberate, and unlawful administration of poison resulting in death. State v. Schneider, 53 N.D. 931, 208 N.W. 566, 1926 N.D. LEXIS 39 (N.D. 1926).

Information Inconclusive As to Degree of Offense.

An information which designated the offense as murder in the first degree did not control as to the degree, as that depended upon the facts alleged, and not upon the conclusions of the pleader or grand jury. State v. Noah, 20 N.D. 281, 124 N.W. 1121, 1910 N.D. LEXIS 55 (N.D. 1910).

Instructions.

In a case where a jury was impaneled to determine the punishment upon a plea of guilty in a murder case it was improper to charge the jury that the court had the power to reduce the penalty if they imposed the death penalty, as it tended to give the jury to understand that the whole responsibility was not on them. State v. Noah, 20 N.D. 281, 124 N.W. 1121, 1910 N.D. LEXIS 55 (N.D. 1910).

Where the proof was such as to show that the defendant was guilty of one of the degrees of murder or of manslaughter, or not guilty, and the court instructed the jury on the degrees, it was not error to omit to instruct as to the lesser offenses included within such greater offenses. State v. Woods, 24 N.D. 156, 139 N.W. 321, 1912 N.D. LEXIS 21 (N.D. 1912).

After instructing, in a prosecution for second degree murder, that the state had to prove beyond a reasonable doubt that an operation was not necessary to save life, it was error to give a further instruction from which it could be inferred that defendant had to prove the operation was necessary to save life. State v. Darrow, 56 N.D. 334, 217 N.W. 519, 1928 N.D. LEXIS 221 (N.D. 1928).

Where the evidence showed that the essential elements of murder in the first degree were all present and there was no evidence of murder in the second degree, there was no question of fact for the jury to determine touching the degree and it was not error for the trial court to say so. State v. Tucker, 58 N.D. 82, 224 N.W. 878, 1929 N.D. LEXIS 184 (N.D. 1929).

Instruction which quoted criminal information alleging four acts in the alternative, any one of which constituted the crime of negligent homicide, and which thereafter defined the crime of negligent homicide in the language of the statute, was not misleading to the jury and not error on the part of the trial court. State v. Steele, 211 N.W.2d 855, 1973 N.D. LEXIS 113 (N.D. 1973).

A charge of manslaughter required proof of only ordinary negligence, or a lack of ordinary care which would not constitute a showing of culpable negligence. State v. Hagge, 224 N.W.2d 560, 1974 N.D. LEXIS 144 (N.D. 1974).

Jury Decides Punishment.

It was the duty of the court to inform the jury upon a trial for murder as to the two methods of punishment, and to leave it to the jury to determine which should be inflicted; and when the court advised the jury as to grounds or reasons for inflicting the death penalty, or life imprisonment, it invaded the province of the jury. State v. Peltier, 21 N.D. 188, 129 N.W. 451, 1910 N.D. LEXIS 157 (N.D. 1910).

Lesser Included Offenses.

Under a charge of assault and battery with intent to kill, while armed with a deadly weapon, it was competent for the jury to return a verdict of guilty of an aggravated assault. State v. Maloney, 7 N.D. 119, 72 N.W. 927, 1897 N.D. LEXIS 44 (N.D. 1897).

The elements of murder in the second degree were necessarily included in the charge of murder in the first degree. State v. Noah, 20 N.D. 281, 124 N.W. 1121, 1910 N.D. LEXIS 55 (N.D. 1910).

A defendant informed against for assault and battery with intent to kill could be convicted of assault and battery without intent to kill. State v. Hoerner, 55 N.D. 761, 215 N.W. 277, 1927 N.D. LEXIS 160 (N.D. 1927).

Assault and battery with a dangerous weapon with intent to do bodily harm, and without justifiable or excusable cause, was not a lesser and included offense in the crime of shooting at another with a firearm with intent to kill. State v. Muzzy, 66 N.D. 41, 262 N.W. 335, 1935 N.D. LEXIS 169 (N.D. 1935).

An assault and battery with a dangerous weapon, with intent to do bodily harm, was included in the offense of assault with a deadly weapon with intent to kill, and a conviction of the former offense, under an information charging the latter, was valid. State v. Grassy, 50 N.D. 715, 197 N.W. 881, 1924 N.D. LEXIS 25 (N.D. 1924).

“Malice.”

The statutory definition of “malice” could properly be applied as a definition of the element of malice in the crime of murder, and was not inconsistent with premeditated design necessary to constitute criminal intent. Territory v. Egan, 13 N.W. 568, 3 Dakota 119, 1882 Dakota LEXIS 10 (Dakota 1882).

Malice, express or implied, was essential to the crime of murder in the second degree. State v. Carter, 50 N.D. 270, 195 N.W. 567, 1923 N.D. LEXIS 98 (N.D. 1923).

Negligent Homicide.

Defendant who killed a boy while negligently operating a motor vehicle was improperly sentenced under manslaughter statute, and should have been sentenced for the lesser penalty under the negligent homicide statute. State v. Hagge, 224 N.W.2d 560, 1974 N.D. LEXIS 144 (N.D. 1974).

Negligent homicide required proof of more than ordinary negligence; there must have been reckless disregard for the safety of others, or culpable negligence which implied a total lack of care. State v. Hagge, 224 N.W.2d 560, 1974 N.D. LEXIS 144 (N.D. 1974).

The legislature, by enactment of the negligent homicide statute, legislated anew in the field of homicide resulting from the improper operation of motor vehicles and when applicable, the law superseded the manslaughter statute. State v. Hagge, 224 N.W.2d 560, 1974 N.D. LEXIS 144 (N.D. 1974).

Premeditation As Affecting Degree of Crime.

Murder in the second degree differed from murder in the first degree only in the fact that as to the second degree there was no premeditation or deliberation. State v. Noah, 20 N.D. 281, 124 N.W. 1121, 1910 N.D. LEXIS 55 (N.D. 1910); State v. Mueller, 40 N.D. 35, 168 N.W. 66, 1918 N.D. LEXIS 64 (N.D. 1918).

No premeditation or malice aforethought was necessary to constitute the crime of murder in the second degree. State v. Mueller, 40 N.D. 35, 168 N.W. 66, 1918 N.D. LEXIS 64 (N.D. 1918).

Proof of Death.

Fact of death had to be established by direct proof. STATE v. GIBSON, 69 N.D. 70, 284 N.W. 209, 1939 N.D. LEXIS 135 (N.D. 1939).

Reckless Driving.

By its enactment of a special statute on the commission of homicide by reckless driving of a motor vehicle, the legislature removed that particular offense from the general statute on manslaughter. State v. Hagge, 224 N.W.2d 560, 1974 N.D. LEXIS 144 (N.D. 1974).

Sentence.

Penitentiary sentences from one to three years were not warranted by a verdict finding the defendants guilty of an assault with a dangerous weapon with intent to do bodily harm, without justifiable or excusable cause, where defendants were charged with shooting or attempting to shoot with intent to kill, or with shooting or attempting to shoot with intent to do bodily harm. State v. Mattison, 13 N.D. 391, 100 N.W. 1091, 1904 N.D. LEXIS 56 (N.D. 1904).

State’s Burden of Proof.

Under an information charging the commission of murder in the first degree, which alleged that at the said time and place said defendant did then and there willfully, unlawfully and feloniously strike deceased a blow, causing her death, while he the said defendant was attempting to commit rape in and upon the person of the deceased, the state was required to prove to the satisfaction of the jury beyond a reasonable doubt that the defendant struck the fatal blow while attempting to commit rape upon the person of the deceased. State v. Maresch, 75 N.D. 229, 27 N.W.2d 1, 1947 N.D. LEXIS 62 (N.D. 1947).

Where defendants in a criminal case were charged with murder in the first degree, and there was reasonable ground to doubt in which of two or more degrees they were guilty, they could be convicted of the lowest degree only. State v. Whiteman, 79 N.W.2d 528, 1956 N.D. LEXIS 159, 1956 N.D. LEXIS 160 (N.D. 1956).

Collateral References.

Malice: inference of malice or intent to kill where killing is done by blow without weapon, 22 A.L.R.2d 854.

Hunting accident, criminal responsibility for injury or death resulting from, 23 A.L.R.2d 1401.

Causing one, by threats or fright, to leap or fall to his death, 25 A.L.R.2d 1186.

Fright or shock, homicide by, 47 A.L.R.2d 1072.

Druggist’s criminal responsibility for death or injury in consequence of mistake, 55 A.L.R.2d 714.

Validity and construction of 59 A.L.R.2d 946.

Premeditation: presumption of deliberation or premeditation from the fact of killing, 86 A.L.R.2d 656.

Dying declarations as to motive for killing, 86 A.L.R.2d 905.

Punishment of child: criminal liability of parent, teacher, or one in loco parentis for homicide by excessive or improper punishment inflicted on child, 89 A.L.R.2d 396.

“Lying in wait,” what constitutes, 89 A.L.R.2d 1140.

Medical or surgical attention, failure to provide, 100 A.L.R.2d 483.

Treatment of injury: liability where death immediately results from treatment or mistreatment of injury inflicted by defendant, 100 A.L.R.2d 769.

Intoxication: modern status of the rules as to voluntary intoxication as defense to criminal charge, 8 A.L.R.3d 1236.

Relationship with assailant’s wife as provocation depriving defendant of right of self-defense, 9 A.L.R.3d 933.

Mental or emotional condition as diminishing responsibility for crime, 22 A.L.R.3d 1228.

Arrest: private person’s authority, in making arrest for felony, to shoot or kill alleged felon, 32 A.L.R.3d 1078.

Improper treatment of disease or injury, homicide predicated on, 45 A.L.R.3d 114.

Attempted murder, what constitutes, 54 A.L.R.3d 612.

Self-defense: unintentional killing of or injury to third person during attempted self-defense, 55 A.L.R.3d 620.

Withdrawal, after provocation of conflict, as reviving right of self-defense, 55 A.L.R.3d 1000.

Criminal liability where the act of killing is done by one resisting felony or other unlawful act committed by defendant, 56 A.L.R.3d 239.

Felony-murder rule, what constitutes termination of felony for purpose of, 58 A.L.R.3d 851.

Withholding food, clothing, or shelter, 61 A.L.R.3d 1207.

Live birth: proof of live birth in prosecution for killing newborn child, 65 A.L.R.3d 413.

Effect of voluntary drug intoxication upon criminal responsibility, 73 A.L.R.3d 98.

When intoxication deemed involuntary so as to constitute a defense to criminal charge, 73 A.L.R.3d 195.

What constitutes murder by torture, 83 A.L.R.3d 1222.

Modern status of the rules requiring “malice aforethought,” “deliberation,” or “premeditation” as elements of murder in the first degree, 18 A.L.R.4th 961.

Criminal liability for death of another as result of accused’s attempt to kill self or assist another’s suicide, 40 A.L.R.4th 702.

Homicide: Sufficiency of evidence of mother’s neglect of infant born alive, in minutes or hours immediately following unattended birth, to establish culpable homicide, 40 A.L.R.4th 724.

Homicide by causing victim’s brain-dead condition, 42 A.L.R.4th 742.

Corporation’s criminal liability for homicide, 45 A.L.R.4th 1021.

Homicide: physician’s withdrawal of life supports from comatose patient, 47 A.L.R.4th 18.

Judicial power to order discontinuance of life-sustaining treatment, 48 A.L.R.4th 67.

Admissibility, in homicide prosecution, of evidence as to tests made to ascertain distance from gun to victim when gun was fired, 11 A.L.R.5th 497.

Admissibility of evidence in homicide case that victim was threatened by one other than defendant, 11 A.L.R.5th 831.

Ineffective assistance of counsel: battered spouse syndrome as defense to homicide or other criminal offense, 11 A.L.R.5th 871.

Admissibility of evidence of prior physical acts of spousal abuse committed by defendant accused of murdering spouse or former spouse, 24 A.L.R.5th 465.

Admissibility in homicide prosecution of allegedly gruesome or inflammatory visual recording of crime scene, 37 A.L.R.5th 515.

Homicide: liability where death immediately results from treatment or mistreatment of injury inflicted by defendant, 50 A.L.R. 5th 467.

Adequacy of defense counsel’s representation of criminal client — conduct occurring at time of trial regarding issues of diminished capacity, intoxication, and unconsciousness, 78 A.L.R.5th 197.

Adequacy of defense counsel’s representation of criminal client — pretrial conduct or conduct at unspecified time regarding issues of diminished capacity, intoxication, and unconsciousness, 79 A.L.R.5th 419.

Sufficiency of Evidence to Support Homicide Conviction Where No Body Was Produced. 65 A.L.R.6th 359.

Law Reviews.

Summary of significant decisions rendered by the North Dakota Supreme Court in 1990 relating to homicide, 66 N.D. L. Rev. 753 (1990).

Defending battered women: Everything she says may be used against them, 68 N.D. L. Rev. 131 (1992).

12.1-16-02. Manslaughter.

A person is guilty of manslaughter, a class B felony, if he recklessly causes the death of another human being.

Source: S.L. 1973, ch. 116, § 16; 1983, ch. 165, § 1; 1985, ch. 174, § 2.

Cross-References.

Jurisdiction of manslaughter, see N.D.C.C. § 29-03-18.

Penalty for class B felony, see N.D.C.C. § 12.1-32-01.

Sentencing of violent offenders, see N.D.C.C. § 12.1-32-09.1.

Notes to Decisions

Constitutionality.
—Equal Protection.

The grading phrase “extreme indifference to the value of human life” is an understandable and distinct definition of the conduct prohibited by N.D.C.C. § 12.1-16-01, subsection 1, subdivision b, and is a reasonable and rational method of distinguishing the greater crime of class AA murder from the lesser crime of class B manslaughter; therefore, there is no arbitrary discrimination between classes similarly situated that is prohibited by the Equal Protection Clause of the Fourteenth Amendment. Frey v. State, 509 N.W.2d 261, 1993 N.D. LEXIS 230 (N.D. 1993).

Culpability.

“Knowingly”, “willfully”, “intentionally”, and “negligently” are not components of manslaughter’s culpability requirement of recklessly, and defendant charged and tried for offense of manslaughter was not entitled to have jury instructed on such terms. State v. Granrud, 301 N.W.2d 398, 1981 N.D. LEXIS 284 (N.D.), cert. denied, 454 U.S. 825, 102 S. Ct. 113, 70 L. Ed. 2d 98, 1981 U.S. LEXIS 3207 (U.S. 1981).

Extreme Emotional Disturbance.

Where defendant raises evidence of extreme emotional disturbance, state is not required to prove nonexistence of extreme emotional disturbance for which there was reasonable excuse beyond a reasonable doubt in order for the jury to convict defendant of murder; same is true with regard to a charge of manslaughter. State v. Dilger, 338 N.W.2d 87, 1983 N.D. LEXIS 373 (N.D. 1983).

Joinder.

Defendant’s manslaughter conviction was proper where he failed to show that the trial court made an obvious error or that he was prejudiced by the joinder of the other defendant at trial; defendants were linked by their participation in a common transaction or act. State v. Bingaman, 2002 ND 202, 655 N.W.2d 51, 2002 N.D. LEXIS 270 (N.D. 2002).

Jury Verdict.

Jury verdict convicting defendant of reckless endangerment and negligent homicide while acquitting him of manslaughter was not inconsistent; evidence showed that the defendant, who was driving a vehicle in an accident that killed one and injured four, was reckless in his endangerment of his passengers’ lives before the death occurred. State v. Jahner, 2003 ND 36, 657 N.W.2d 266, 2003 N.D. LEXIS 32 (N.D. 2003).

Recklessness.

Jury could have reasonably concluded that defendant, who injected the victim with a syringe, was familiar with drug overdose symptoms and was awake while the victim was in a medical crisis. Whether defendant’s conduct in failing to render aid to the victim rose to the level of criminal negligence or recklessness was within the province of the jury. State v. Streeper, 2007 ND 25, 727 N.W.2d 759, 2007 N.D. LEXIS 22 (N.D. 2007).

Sufficiency of Evidence.

Evidence that defendant made unsolicited comments to various police officers and other persons to the effect that she had kicked victim and that she had killed him, along with testimony that witness observed defendant stomping or kicking victim about the head and body, and that the cause of victim’s death was hemorrhage of the brain resulting from a blow to the head by a blunt object such as a bare foot, constituted sufficient evidence to support the jury’s verdict that defendant committed manslaughter. State v. Olson, 372 N.W.2d 901, 1985 N.D. LEXIS 379 (N.D. 1985).

DECISIONS UNDER PRIOR LAW

Erroneous Instruction.

Where a jury under an erroneous instruction found the defendant guilty only of manslaughter in the second degree which was not based on reckless driving, such instruction was without prejudice to the defendant. State v. Tjaden, 69 N.W.2d 272, 1955 N.D. LEXIS 97 (N.D. 1955).

Reckless Driving.

If a homicide occurred while the driver of a motor vehicle was engaged in committing the misdemeanor of reckless driving it was neither excusable nor justifiable and was therefore manslaughter. Green v. Whipple, 89 N.W.2d 881, 1958 N.D. LEXIS 78 (N.D. 1958).

Reckless driving was not included in a conviction on second degree of manslaughter. State v. Tjaden, 69 N.W.2d 272, 1955 N.D. LEXIS 97 (N.D. 1955).

Collateral References.

Who other than actor is responsible for manslaughter, 95 A.L.R.2d 175.

Insulting words as provocation of homicide or as reducing degree thereof, 2 A.L.R.3d 1292.

Relationship with assailant’s wife as provocation depriving defendant of right of self-defense, 9 A.L.R.3d 933.

Mental or emotional condition as diminishing responsibility for crime, 22 A.L.R.3d 1228.

Self-defense: unintentional killing of or injury to third person during attempted self-defense, 55 A.L.R.3d 620.

Effect of voluntary drug intoxication upon criminal responsibility, 73 A.L.R.3d 98.

When intoxication deemed involuntary so as to constitute a defense to criminal charge, 73 A.L.R.3d 195.

Spouse’s confession of adultery as affecting degree of homicide involved in killing spouse or his or her paramour, 93 A.L.R.3d 925.

Propriety of manslaughter conviction in prosecution for murder, absent proof of necessary elements of manslaughter, 19 A.L.R.4th 861.

Judicial power to order discontinuance of life-sustaining treatment, 48 A.L.R.4th 67.

Homicide: liability where death immediately results from treatment or mistreatment of injury inflicted by defendant, 50 A.L.R. 5th 467.

Adequacy of defense counsel’s representation of criminal client — conduct occurring at time of trial regarding issues of diminished capacity, intoxication, and unconsciousness, 78 A.L.R.5th 197.

Adequacy of defense counsel’s representation of criminal client — pretrial conduct or conduct at unspecified time regarding issues of diminished capacity, intoxication, and unconsciousness, 79 A.L.R.5th 419.

Propriety of lesser included offense charge of voluntary manslaughter to jury in state murder prosecution-Twenty-first century cases, 3 A.L.R.6th 543.

Law Reviews.

Criminal Law — Self-Defense — Jury Instructions Given on Subjective Standard of Reasonableness in Self-Defense Do Not Require a Specific Instruction on Battered Woman Syndrome, 60 N.D. L. Rev. 45 (1984).

12.1-16-03. Negligent homicide.

A person is guilty of a class C felony if he negligently causes the death of another human being.

Source: S.L. 1973, ch. 116, § 16.

Cross-References.

Penalty for class C felony, see N.D.C.C. § 12.1-32-01.

Notes to Decisions

Culpability.

Jury verdict convicting defendant of reckless endangerment and negligent homicide was not inconsistent; defendant was driving when involved in an accident that killed one and injured four, and the evidence showed reckless endangerment of the passengers’ lives before the death occurred. State v. Jahner, 2003 ND 36, 657 N.W.2d 266, 2003 N.D. LEXIS 32 (N.D. 2003).

Evidence.
—Admissible.

The results of an intoxilyzer test may well be relevant evidence in a negligent homicide case. State v. Winkler, 552 N.W.2d 347, 1996 N.D. LEXIS 187 (N.D. 1996).

—Sufficient.

A boat operator’s actions in failing to have each passenger wear a personal flotation device, operating his boat in adverse water and weather conditions, operating his boat in poor light, and operating his boat while under the influence of intoxicating liquor, were sufficient to support a conviction of negligent homicide arising out of the death of two children passengers when the boat overturned. State v. Tranby, 437 N.W.2d 817, 1989 N.D. LEXIS 55 (N.D.), cert. denied, 493 U.S. 841, 110 S. Ct. 128, 107 L. Ed. 2d 88, 1989 U.S. LEXIS 4147 (U.S. 1989).

District court properly denied defendant’s motions for acquittal as the evidence was sufficient to convict defendant of negligent homicide when a trailer completely decoupled from his pickup truck, collided with an oncoming car, and killed the driver of that car because the record contained evidence from which the jury could conclude that defendant failed to properly attach his trailer by not using a ball, improperly attaching the ball, or using an incorrectly sized ball; and by failing to use or incorrectly attaching the safety chains while towing his trailer on the highway. State v. Evans, 2013 ND 195, 838 N.W.2d 605, 2013 N.D. LEXIS 199 (N.D. 2013).

Instruction.

The negligence involved in a negligent homicide instruction in a self-defense case is a negligently-held belief in the necessity of using force in self-defense. State v. Gagnon, 1997 ND 153, 567 N.W.2d 807, 1997 N.D. LEXIS 172 (N.D. 1997).

A negligent homicide instruction must be given when self-defense and manslaughter are issues in a murder case. State v. Gagnon, 1997 ND 153, 567 N.W.2d 807, 1997 N.D. LEXIS 172 (N.D. 1997).

Intentional Shooting.

The fact that a shooting was intentional does not preclude a verdict of manslaughter if the shooting resulted from an unreasonable belief in the necessity of using force. State v. Clark, 1997 ND 199, 570 N.W.2d 195, 1997 N.D. LEXIS 243 (N.D. 1997).

Intervening Event.

In a prosecution for negligent homicide arising out of death of the victim from hypothermia, where it appeared very unlikely from the record that the victim could have been, by any means, revived after her body was discovered, someone else’s failure, if it could be so proved, to revive the victim after her body was discovered could not have excused the defendant for his negligent conduct. State v. Schlickenmayer, 364 N.W.2d 108, 1985 N.D. LEXIS 273 (N.D. 1985).

Negligently Caused Death.

It is not necessary to show that defendant realized her conduct would in all probability produce death in order to establish that she negligently caused death; negligent conduct requires only showing of an unreasonable disregard of a substantial likelihood of existence of relevant facts or risks. State v. Ohnstad, 359 N.W.2d 827, 1984 N.D. LEXIS 435 (N.D. 1984).

Statute Not Vague.

The language of this section when read together with the definition of “negligently” in N.D.C.C. § 12.1-02-02 is sufficiently explicit to enable a reasonable person to determine what type of conduct renders him liable under the statute. State v. Tranby, 437 N.W.2d 817, 1989 N.D. LEXIS 55 (N.D.), cert. denied, 493 U.S. 841, 110 S. Ct. 128, 107 L. Ed. 2d 88, 1989 U.S. LEXIS 4147 (U.S. 1989).

Verdicts Consistent.

Acquittals for murder and negligent homicide were not inconsistent with a conviction for leaving the scene of an accident causing death because the jury could have found that defendant did not negligently cause death, but negligently left the scene when he failed to get out and see what a bump was when he left the parking lot across from a bar. State v. Jacob, 2006 ND 246, 724 N.W.2d 118, 2006 N.D. LEXIS 253 (N.D. 2006).

DECISIONS UNDER PRIOR LAW

Culpable Negligence.

The term “culpable negligence” in former section defining manslaughter in the second degree, as applied to the operation of a motor vehicle, implied a total lack of care properly described as being in a reckless and heedless manner, with utter disregard for the lives and limbs of persons upon the highway. State v. Gulke, 76 N.D. 653, 38 N.W.2d 722 (1949), decided prior to the enactment of section 12.1-16-02; State v. Tjaden, 69 N.W.2d 272, 1955 N.D. LEXIS 97 (N.D. 1955).

Where defendant was charged with first degree manslaughter perpetrated while committing misdemeanor of reckless driving and the evidence showed that defendant was guilty of culpable negligence, trial court properly instructed the jury on manslaughter in the second degree as an included offense. State v. Gulke, 76 N.D. 653, 38 N.W.2d 722, 1949 N.D. LEXIS 85 (N.D. 1949).

Collateral References.

Criminal responsibility for death resulting from hunting accident, 23 A.L.R.2d 1401.

Criminal responsibility of druggist for death in consequence of mistake, 55 A.L.R.2d 714.

Criminal responsibility of motor vehicle operator for fatal accident arising from physical defect, illness, drowsiness, or falling asleep, 63 A.L.R.2d 983.

Punishment of child: criminal liability of parent, teacher, or one in loco parentis for homicide by excessive or improper punishment inflicted on child, 89 A.L.R.2d 396.

Medical or surgical attention, failure to provide, 100 A.L.R.2d 483.

Treatment of injury: liability where death immediately results from treatment or mistreatment of injury inflicted by defendant, 100 A.L.R.2d 769.

What amounts to negligence within meaning of statutes penalizing negligent homicide by operation of a motor vehicle, 20 A.L.R.3d 473.

Criminal liability for death resulting from unlawfully furnishing intoxicating liquor or drugs to another, 32 A.L.R.3d 589.

Improper treatment of disease or injury, homicide predicated on, 45 A.L.R.3d 114.

Use of set gun, trap, or similar device on defendant’s own property, 47 A.L.R.3d 646.

Unintentional killing of or injury to third person during attempted self-defense, 55 A.L.R.3d 620.

Criminal responsibility for physical measures undertaken in connection with treatment of mentally disordered patient, 99 A.L.R.3d 854.

Criminal liability for injury or death caused by operation of pleasure boat, 8 A.L.R.4th 886.

Homicide: liability where death immediately results from treatment or mistreatment of injury inflicted by defendant, 50 A.L.R. 5th 467.

Establishment of negligence within meaning of statute penalizing negligent homicide by operation of motor vehicle — Speeding or driving at unsafe speed, 84 A.L.R.6th 427.

12.1-16-04. Assisting the commission of suicide — Causing death by suicide — Penalties.

  1. Any person who intentionally or knowingly aids, abets, facilitates, solicits, or incites another person to commit suicide, or who provides to, delivers to, procures for, or prescribes for another person any drug or instrument with knowledge that the other person intends to attempt to commit suicide with the drug or instrument is guilty of a class C felony.
  2. Any person who, through deception, coercion, or duress, willfully causes the death of another person by suicide is guilty of a class AA felony.

Source: S.L. 1991, ch. 123, § 1.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

12.1-16-05. Injunctive relief.

  1. A claim for relief for an injunction may be maintained against any person who has attempted or will attempt to violate subsection 1 of section 12.1-16-04 by any person who is entitled to inherit from the person who would commit suicide or who is the spouse, parent, child, sibling, or health care provider of such person.
  2. Any public official with jurisdiction to prosecute or enforce the laws of this state may maintain a claim for relief for an injunction against any present or future violation or attempted violation of subsection 1 of section 12.1-16-04.

Source: S.L. 1991, ch. 123, § 2.

12.1-16-06. Construction.

Sections 12.1-16-04 through 12.1-16-06 do not preclude the use of medications or procedures necessary to relieve a person’s pain or discomfort if the use of the medications or procedures is not intentionally or knowingly prescribed or administered to cause the death of that person. In addition, sections 12.1-16-04 through 12.1-16-06 do not preclude the withholding or withdrawal of life-prolonging treatment pursuant to state or federal law.

Source: S.L. 1991, ch. 123, § 3.

12.1-16-07. Civil damages.

Any person given standing under subsection 1 of section 12.1-16-05, except the health care provider, may maintain a claim for relief for compensatory and punitive damages against any person who violates or attempts to violate section 12.1-16-04. Prior knowledge of or consent to the violation by the plaintiff does not preclude a claim for relief under this section. This section does not preclude any claim under any other provision of law.

Source: S.L. 1999, ch. 122, § 1.

12.1-16-08. Suspension or revocation of license of health care provider.

If the person who assists in a suicide in violation of section 12.1-16-04 is a person who is licensed, certified, or otherwise authorized by title 43 to administer health care in the ordinary course of business or professional practice, the licensing agency that issued the license or certification to that person may suspend or revoke the license or certification of that person upon receipt of:

  1. A copy of the record of criminal conviction or plea of guilty to a felony in violation of section 12.1-16-04;
  2. A copy of the record of a judgment of contempt of court for violating an injunction issued under section 12.1-16-05; or
  3. A copy of the record of a judgment assessing damages under section 12.1-16-07.

Source: S.L. 1999, ch. 122, § 2.

Cross-References.

Discipline of nurses, see N.D.C.C. § 43-12.1-14.

Discipline of physicians and surgeons, see N.D.C.C. §§ 43-17-30.1 to 43-17-32.1.

CHAPTER 12.1-17 Assaults — Threats — Coercion — Harassment

12.1-17-01. Simple assault.

  1. A person is guilty of an offense if that person:
    1. Willfully causes bodily injury to another human being; or
    2. Negligently causes bodily injury to another human being by means of a firearm, destructive device, or other weapon, the use of which against a human being is likely to cause death or serious bodily injury.
  2. The offense is:
    1. A class C felony when the victim is a peace officer or correctional institution employee acting in an official capacity, which the actor knows to be a fact; an employee of the state hospital acting in the course and scope of employment, which the actor knows to be a fact, and the actor is an individual committed to or detained at the state hospital pursuant to chapter 25-03.3; a person engaged in a judicial proceeding; or a member of a municipal or volunteer fire department or emergency medical services personnel unit or emergency department worker in the performance of the member’s duties.
    2. A class B misdemeanor except as provided in subdivision a.

Source: S.L. 1973, ch. 116, § 17; 1975, ch. 116, § 15; 1979, ch. 178, § 1; 1993, ch. 119, § 1; 1997, ch. 121, § 1; 2001, ch. 133, §§ 1, 2; 2003, ch. 105, § 1; 2005, ch. 114, § 1; 2009, ch. 129, § 1; 2019, ch. 107, § 2, effective August 1, 2019.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Notes to Decisions

Evidence Admissible.

Where defendant appealed her conviction for violating N.D.C.C. § 12.1-17-01(1)(a), the district court’s admission of prior bad act evidence under N.D.R.Ev. 404(b) was harmless error as ample evidence supported the conclusion that she willfully caused bodily injury to another human being independent of the evidence of the prior bad acts. State v. Dieterle, 2013 ND 130, 833 N.W.2d 473, 2013 N.D. LEXIS 121 (N.D. 2013).

Evidence Sufficient.

Evidence was sufficient to convict defendant of attempted simple assault where the sheriff testified that defendant “swung, and he grazed the side of my face,” leaving a “mark on my face” and “also a mark on my knee where he had kicked me.” Defendant’s conduct evidenced he intentionally attempted to hit the sheriff and did hit and kick the sheriff, leaving visible marks on his body. State v. Barth, 2005 ND 134, 702 N.W.2d 1, 2005 N.D. LEXIS 169 (N.D. 2005).

Evidence was sufficient to convict defendant of simple assault-domestic violence because he caused bodily injury to a victim; although the victim testified that she did not feel any pain, it was a matter of common experience and understanding that was left to the jury. A reporting witness testified to seeing defendant strike the alleged victim repeatedly in the upper body, and defendant had a fresh laceration on his arm after the alleged assault; moreover, officers testified that it was not uncommon to investigate assaults where there was no indication of physical injury. State v. Hannah, 2016 ND 11, 873 N.W.2d 668, 2016 N.D. LEXIS 7 (N.D. 2016).

Defendant was properly convicted of simple assault on a peace officer, fleeing or attempting to elude a peace officer, and preventing arrest because he was given a visual signal to stop when a detective activated his emergency lights and, while the emergency lights were still on and without any indication the detective had released him, defendant drove away and when the detective another officer later encountered defendant at a storage unit, defendant shoved the detective into a storage unit door, closed his car door on the detective’s arm, and kicked the other officer in the chest and chin, causing both officers pain. State v. Hamre, 2019 ND 86, 924 N.W.2d 776, 2019 N.D. LEXIS 85 (N.D. 2019).

Intoxication.

Intoxication is not an element of simple assault, nor is it a defense to a simple assault charge. State v. Schindele, 540 N.W.2d 139, 1995 N.D. LEXIS 208 (N.D. 1995).

Invited Error.

District court did not err in failing to instruct the jury to make a finding as to whether defendant knew that a state trooper was acting in his official capacity at the time of her arrest because she invited the error by kicking and striking the trooper in the face and shoulder when he tried to get her back in the patrol car after he checked her for weapons, nothing in the record indicated that defendant did not know the trooper was working in his official capacity, and while defendant argued on appeal that she was fearful during the traffic stop, she never testified at trial, the trooper testified that she was belligerent and uncooperative throughout the entire traffic stop, but did not appear fearful or scared. State v. Rende, 2018 ND 56, 907 N.W.2d 361, 2018 N.D. LEXIS 44 (N.D. 2018).

Lesser Included Offense.
—Assault of a Police Officer.

Because there was no evidence to create a reasonable doubt about the official capacities of deputies, the evidence did not require a jury instruction on simple assault as a lesser-included offense of assault of a police officer. State v. Larson, 554 N.W.2d 655, 1996 N.D. LEXIS 219 (N.D. 1996).

—Murder.

Because murder can occur without an assault, the district court correctly determined the elements of assault are not a subset of the elements of murder and refused defendant’s request to instruct the jury on assault as a lesser included offense of murder. United States v. Standish, 3 F.3d 1207, 1993 U.S. App. LEXIS 22509 (8th Cir. N.D. 1993).

Preventing Arrest.

Record contained competent evidence to permit the jury to find defendant guilty of resisting arrest. State v. Hondl, 506 N.W.2d 404, 1993 N.D. LEXIS 181 (N.D. 1993).

Self-Defense Instruction.

Where self-defense and defense of others were the defendant’s primary defenses to the simple assault charge, the trial court’s refusal to give the instructions constituted reversible error under N.D.R.Crim.P. 52(a). State v. Thiel, 411 N.W.2d 66, 1987 N.D. LEXIS 364 (N.D. 1987).

In prosecution for simple assault, the defendant was entitled to the instructions on self-defense and defense of another, although he refused to unequivocably admit striking the victim. State v. Thiel, 411 N.W.2d 66, 1987 N.D. LEXIS 364 (N.D. 1987).

DECISIONS UNDER PRIOR LAW

“Assault and Battery.”

Where jury acquitted defendant of assault and battery, but convicted him of assault, the verdict was lawful and valid since the strict standards of logical consistency need not be applied to jury verdicts in criminal cases, and since the common use of the term “assault and battery” as a single offense enjoyed general acceptance. State v. Swanson, 225 N.W.2d 283, 1974 N.D. LEXIS 145 (N.D. 1974).

Battery As “Consummated Assault.”

Every battery was, in effect, a consummated assault, and thus a person could make an unlawful attempt to do violence to another, which constituted an assault, without committing the battery. State v. Swanson, 225 N.W.2d 283, 1974 N.D. LEXIS 145 (N.D. 1974).

Character Evidence.

In order for defendant to introduce evidence of the turbulent and quarrelsome character of the victim — a police officer — he had first to introduce foundation evidence tending to show that he acted in self-defense. State v. Lende, 190 N.W.2d 52, 1971 N.D. LEXIS 134 (N.D. 1971).

Evidence Sufficient.

Where four defendants, charged with assault and battery, admitted they traveled together, arrived at scene of assault together, were present while fighting between them and occupants of house was going on, and acted in support of each other, none of them doing anything to stop fighting, there was ample evidence that all of defendants aided and abetted in commission of the battery, and conviction was affirmed. State v. Berger, 235 N.W.2d 254, 1975 N.D. LEXIS 142 (N.D. 1975), cert. denied, 425 U.S. 913, 96 S. Ct. 1511, 47 L. Ed. 2d 764, 1976 U.S. LEXIS 880 (U.S. 1976).

Information Sufficient.

Where the offense charged in the information included another smaller constituent offense the charge of such other offense would not render the information duplicitous. State v. Climie, 12 N.D. 33, 94 N.W. 574, 1903 N.D. LEXIS 3 (N.D. 1903).

Rape.

As an assault did not imply an ability to consummate the attempted act, impotency could not be a defense to the charge of an assault with intent to commit the crime of rape. Territory v. Keyes, 38 N.W. 440, 5 Dakota 244, 1888 Dakota LEXIS 23 (Dakota 1888).

Threatened Violence.

It was sufficient to constitute an assault that there was an overt act of threatened violence with the apparent ability to commit a battery. State v. Cruikshank, 13 N.D. 337, 100 N.W. 697, 1904 N.D. LEXIS 36 (N.D. 1904).

Touching.

To constitute a battery there had to be an actual touching, however slight, of the person assaulted. State v. Cruikshank, 13 N.D. 337, 100 N.W. 697, 1904 N.D. LEXIS 36 (N.D. 1904).

Touching one willfully was not sufficient to constitute a battery. State v. Magill, 19 N.D. 131, 122 N.W. 330, 1909 N.D. LEXIS 80 (N.D. 1909).

Collateral References.

Indecent proposal to a woman as a criminal assault, 12 A.L.R.2d 971.

Criminal responsibility for injury resulting from hunting accident, 23 A.L.R.2d 1401.

Motor vehicle: criminal responsibility for assault and battery by operation of mechanically defective motor vehicle, 88 A.L.R.2d 1165.

Child: criminal liability for excessive or improper punishment inflicted on child by parent, teacher, or one in loco parentis, 89 A.L.R.2d 396.

Admissibility of evidence as to other’s character or reputation for turbulence on question of self-defense by one charged with assault or homicide, 1 A.L.R.3d 571.

Relationship with assailant’s wife as provocation depriving defendant of right of self-defense, 9 A.L.R.3d 933.

Use of set gun, trap, or similar device on defendant’s own property, 47 A.L.R.3d 646.

Self-defense: unintentional killing of or injury to third person during attempted self-defense, 55 A.L.R.3d 620.

Withdrawal, after provocation of conflict, as reviving right of self-defense, 55 A.L.R.3d 1000.

Consent as defense to charge of criminal assault and battery, 58 A.L.R.3d 662.

Robbery, attempted robbery, or assault to commit robbery, as affected by intent to collect or secure debt or claim, 88 A.L.R.3d 1309.

Automobile as dangerous or deadly weapon within meaning of assault or battery statute, 89 A.L.R.3d 1026.

Sufficiency of evidence to establish criminal participation by individual involved in gang fight or assault, 24 A.L.R.4th 243.

Franchisor’s tort liability for injuries allegedly caused by assault or other criminal activity on or near franchise premises, 2 A.L.R.5th 369.

Transmission or risk of transmission of human immunodeficiency virus (HIV) or acquired immunodeficiency syndrome (AIDS) as basis for prosecution or sentencing in criminal or military discipline case, 13 A.L.R.5th 628.

Validity, construction, and effect of assault and battery exclusion in liability insurance policy at issue, 44 A.L.R.5th 91.

Secondary smoke as battery, 46 A.L.R.5th 813.

Attempt to commit assault as criminal offense, 93 A.L.R.5th 683.

Parents’ criminal liability for failure to provide medical attention to their children, 118 A.L.R.5th 253.

Parts of Human Body, other than Feet, as Deadly or Dangerous Weapons or Instrumentalities for Purposes of Statutes Aggravating Offenses such as Assault and Robbery. 67 A.L.R.6th 103.

12.1-17-01.1. Assault.

A person is guilty of a class A misdemeanor, except if the victim is under the age of twelve years in which case the offense is a class C felony, if that person:

  1. Willfully causes substantial bodily injury to another human being; or
  2. Negligently causes substantial bodily injury to another human being by means of a firearm, destructive device, or other weapon, the use of which against a human being is likely to cause death or serious bodily injury.

Source: S.L. 1985, ch. 175, § 2; 1999, ch. 123, § 1.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Collateral References.

Injury or death caused by assault as within coverage of no-fault motor vehicle insurance, 44 A.L.R.4th 1010.

Attempt to commit assault as criminal offense, 93 A.L.R.5th 683.

Parts of Human Body, other than Feet, as Deadly or Dangerous Weapons or Instrumentalities for Purposes of Statutes Aggravating Offenses such as Assault and Robbery. 67 A.L.R.6th 103.

Notes to Decisions

Included Offenses.

When defendant was charged with aggravated assault, it was no error to instruct the jury on assault and simple assault because the greater offense could not be committed without committing the lesser offense. State v. McAllister, 2020 ND 48, 939 N.W.2d 502, 2020 N.D. LEXIS 45 (N.D. 2020).

12.1-17-01.2. Domestic violence.

  1. For purposes of this section “family or household member” means family or household member as defined in section 14-07.1-01.
  2. A person is guilty of an offense if that person willfully causes:
    1. Bodily injury to the actor’s family or household member;
    2. Substantial bodily injury to the actor’s family or household member; or
    3. Serious bodily injury to the actor’s family or household member.
  3. The offense is:
    1. A class B misdemeanor for the first offense under subdivision a of subsection 2 and a class A misdemeanor for a second or subsequent offense under this section or sections 12.1-17-01, 12.1-17-01.1, or 12.1-17-02 involving the commission of domestic violence, as defined in section 14-07.1-01. For purposes of this subdivision, a prior conviction includes a conviction of any assault offense in which a finding of domestic violence was made under a law or ordinance of another state which is equivalent to this section.
    2. A class A misdemeanor for an offense under subdivision b of subsection 2 and a class C felony for an offense under subdivision c of subsection 2.
    3. A class B felony for an offense under subdivision b or c of subsection 2 if the victim is under twelve years of age.
  4. A person charged with an offense under this section must be prosecuted in district court .

Source: S.L. 2019, ch. 107, § 3, effective August 1, 2019.

12.1-17-02. Aggravated assault.

  1. Except as provided in subsection 2, a person is guilty of a class C felony if that person:
    1. Willfully causes serious bodily injury to another human being;
    2. Knowingly causes bodily injury or substantial bodily injury to another human being with a dangerous weapon or other weapon, the possession of which under the circumstances indicates an intent or readiness to inflict serious bodily injury;
    3. Causes bodily injury or substantial bodily injury to another human being while attempting to inflict serious bodily injury on any human being; or
    4. Fires a firearm or hurls a destructive device at another human being.
  2. The person is guilty of a class B felony if the person violates subsection 1 and the victim:
    1. Is under twelve years of age;
    2. Is a peace officer or correctional institution employee acting in an official capacity, which the actor knows to be a fact; or
    3. Suffers permanent loss or impairment of the function of a bodily member or organ.

Source: S.L. 1973, ch. 116, § 17; 1985, ch. 175, § 3; 1999, ch. 123, § 2; 2015, ch. 104, § 1, effective August 1, 2015; 2017, ch. 98, § 1, effective August 1, 2017.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Sentencing of violent offenders, see N.D.C.C. § 12.1-32-09.1.

Notes to Decisions

Effect of Conviction on Other Proceedings.

Trial court’s only finding on domestic violence was the acknowledgment of the father’s conviction for aggravated assault domestic violence, and this conviction alone was sufficient reason to find the statutory presumption of supervised parenting was triggered based on serious bodily injury; while the court would have preferred more detailed findings, it was clear that the father’s conduct triggered the presumption and this finding was not clearly erroneous. Wisnewski v. Wisnewski, 2020 ND 148, 945 N.W.2d 331, 2020 N.D. LEXIS 148 (N.D. 2020).

Harmless Error.

Defendant’s conviction for aggravated assault in violation of N.D.C.C. § 12.1-17-02(1) was appropriate even though the district court abused its discretion in admitting testimony from a police detective as lay witness opinion testimony under N.D.R.Ev. 701 because the error was harmless since there was overwhelming evidence of guilt. The detective testified that his testimony was based on his review of the police reports and on his interview with the victim weeks after the incident; the detective did not observe the incident or the victim’s injuries. State v. Saulter, 2009 ND 78, 764 N.W.2d 430, 2009 N.D. LEXIS 76 (N.D. 2009).

Included Offenses.

Kidnapping is not an included offense of aggravated assault. State v. Motsko, 261 N.W.2d 860, 1977 N.D. LEXIS 181 (N.D. 1977).

Where defendant was convicted of aggravated assault under this section, the trial court did not err by not instructing the jury on the lesser included offenses of assault and simple assault when a self-defense instruction was given and neither party requested a lesser included offense instruction. State v. Mathre, 1999 ND 224, 603 N.W.2d 173, 1999 N.D. LEXIS 240 (N.D. 1999).

When defendant was charged with aggravated assault, it was no error to instruct the jury on assault and simple assault because the greater offense could not be committed without committing the lesser offense. State v. McAllister, 2020 ND 48, 939 N.W.2d 502, 2020 N.D. LEXIS 45 (N.D. 2020).

Ineffective Assistance of Counsel.

Defendant failed to prove ineffective assistance of counsel where he was advised by his counsel to enter a plea of guilty to aggravated battery, in light of defendant’s extensive prior record and the absence of evidence tending to corroborate defendant’s version of the incident, and where defendant received less than the maximum sentence. State v. Bowers, 426 N.W.2d 293, 1988 N.D. LEXIS 164 (N.D. 1988).

Lesser Included Offense of Attempted Murder.

Aggravated assault under subsections 1, 2, and 3 of this section, which require a bodily injury be suffered by victim, is not a lesser included offense of attempted murder, however, aggravated assault under subsection 4 of this section, which does not require a bodily injury be suffered by victim, can be a lesser included offense of attempted murder. State v. Sheldon, 301 N.W.2d 604, 1980 N.D. LEXIS 342 (N.D. 1980), cert. denied, 450 U.S. 1002, 101 S. Ct. 1711, 68 L. Ed. 2d 204, 1981 U.S. LEXIS 1398 (U.S. 1981).

Defendant was not entitled to a new trial because the verdict was not legally inconsistent where the culpability required for both murder under N.D.C.C. § 12.1-16-01(1)(b) and aggravated assault under N.D.C.C. § 12.1-17-02(1) was willfully, and for attempt under N.D.C.C. § 12.1-06-01(1), the culpability level of the substantial step conduct was intentionally; the culpability requirements for the two crimes were not identical because conviction of attempted murder in this case also required proof of circumstances manifesting extreme indifference to the value of human life and intentionality of the substantial step conduct, but in order to convict an individual of aggravated assault, there was no need to prove an absence of circumstances manifesting an extreme indifference to the value of human life, nor was there a need to prove an absence of intentionality; therefore, the jury’s verdict finding defendant guilty of both crimes was not legally inconsistent. State v. Coppage, 2008 ND 134, 751 N.W.2d 254, 2008 N.D. LEXIS 132 (N.D. 2008).

Prosecutorial Misconduct.

In defendant’s trial for reckless endangerment and aggravated assault, a prosecutor’s comments about not believing defendant’s version of events was not obvious error, and any prejudice was cured by the trial court’s instructions. Also, the prosecutor’s comment during the closing, that defendant had no excuse, was not an attempt to shift the burden; the burden of proof was sufficiently explained in the trial court’s jury instructions on reasonable doubt and the defense of excuse. State v. Clark, 2004 ND 85, 678 N.W.2d 765, 2004 N.D. LEXIS 183 (N.D. 2004).

Sentence.

District court did not abuse its discretion in denying defendant's motion to correct his sentence because his sentence did not contain an arithmetical, technical, or other clear error to correct; while the statutes defining class B and C aggravated assault and requiring service of eighty-five percent of a sentence for specified offenses had been amended to remove the class C felony offense from the eighty-five percent service requirement, that did not constitute an "error" in sentence. State v. Myers, 2017 ND 265, 903 N.W.2d 520, 2017 N.D. LEXIS 266 (N.D. 2017).

District court erred in imposing a five-year sentence of supervised probation because aggravated assault—domestic violence was a class C felony that fell within the "any other felony offense" category, which limited defendant's supervised probation to three years for his crime. State v. Isom, 2018 ND 60, 907 N.W.2d 340, 2018 N.D. LEXIS 61 (N.D. 2018).

Defendant’s prior conviction for willful aggravated assault under North Dakota law did not qualify as crime of violence under United States Sentencing Guidelines because it satisfied neither force clause nor enumerated-offenses clause; it was unclear under which subsection defendant pleaded guilty, and thus, it could not be said with certainty that defendant’s conviction had as element use, attempted use, or threatened use of physical force, and subsection (a) of statute of conviction was broader than generic definition of aggravated assault because it included recklessly causing serious bodily injury. United States v. Schneider, 905 F.3d 1088, 2018 U.S. App. LEXIS 27669 (8th Cir. N.D. 2018).

Serious Bodily Injury.

Permanent reduction in the vision on one eye, with a resulting need to wear corrective lenses, is a “serious bodily injury” under N.D.C.C. § 12.1-01-04(29) which supports conviction of aggravated assault under this section. Dellwo v. R.D.B. (In the Interest of R.D.B.), 1998 ND 15, 575 N.W.2d 420, 1998 N.D. LEXIS 4 (N.D. 1998).

It was reasonable for the jury to find defendant guilty of aggravated assault because the testimony that his wife felt as though she was going to pass out, along with a doctor’s testimony that her injuries were consistent with strangulation, constituted “serious bodily injury”; the testimony stating defendant intentionally put his wife in a choke hold satisfied the requirement that the conduct be “willful.” State v. Abdiwali Mohamud, 2019 ND 101, 925 N.W.2d 396, 2019 N.D. LEXIS 109 (N.D. 2019).

Sufficient Evidence.

Evidence was sufficient to support the aggravated assault conviction as there were photographs of the victim’s injuries, and the officers testified her injuries were consistent with her claims. State v. Vondal, 2011 ND 186, 803 N.W.2d 578, 2011 N.D. LEXIS 185 (N.D. 2011).

Defendant’s conviction for aggravated assault with a dangerous weapon, in violation of N.D.C.C. § 12.1-17-02(1), was proper because the jury could have reasonably found that defendant used a vehicle as a dangerous weapon; defendant intentionally drove a vehicle forward while the victim backpedaled. Defendant continued forward after the victim fell and both the front and rear tire of defendant’s vehicle went over the victim. State v. Vetter, 2013 ND 4, 826 N.W.2d 334, 2013 N.D. LEXIS 2 (N.D. 2013).

Evidence was sufficient to support convictions for leading a criminal association to commit felonious acts and conspiracy to commit aggravated assault where there was testimony during the trial of defendant supplying drugs to individuals for sale and offering a reward for kicking a victim's teeth in. State v. Owens, 2015 ND 68, 860 N.W.2d 817, 2015 N.D. LEXIS 66 (N.D. 2015).

Rational fact finder and a reasonable mind could have concluded the female victim suffered a permanent impairment of a bodily function. Sufficient evidence supported defendant's aggravated assault conviction, and the district court did not err in denying defendant's motion for a judgment of acquittal. State v. Putney, 2016 ND 59, 877 N.W.2d 28, 2016 N.D. LEXIS 61 (N.D. 2016).

Evidence, viewed in a light most favorable to the verdict, permitted a reasonable inference that defendant was guilty of aggravated assault because the victim testified at defendant's preliminary hearing that he grabbed her, threw her against the house, and kicked her five or six different times and an orthopedic surgeon testified the victim suffered from a fractured dislocation of her hip and observed bruising on the victim's arm that was not consistent with her story of a fall but, rather, from being roughly treated. State v. Azure, 2017 ND 195, 899 N.W.2d 294, 2017 N.D. LEXIS 194 (N.D. 2017).

Defendant’s motion for a judgment of acquittal was properly denied because the evidence was sufficient to sustain defendant’s conviction for aggravated assault as he willfully caused serious bodily injury to the victim because the victim testified that defendant strangled her; her testimony alone was sufficient to sustain defendant’s conviction; and the State introduced pictures of the victim showing bruising around her neck, and the emergency room doctor testified the bruising could have been caused by strangulation. State v. Polk, 2020 ND 248, 950 N.W.2d 764, 2020 N.D. LEXIS 252 (N.D. 2020).

Evidence was sufficient to convict defendant of aggravated assault because, although he asserted that there was no attempt, intent, or readiness to inflict serious bodily injury, the jury was permitted to draw its own inferences regarding defendant’s intent in using the beer bottle as a weapon and whether striking the other individual’s face with it causing a serious cut was reasonable self-defense based on defendant’s injuries sustained in the fight. State v. Hirschkorn, 2020 ND 268, 952 N.W.2d 225, 2020 N.D. LEXIS 268 (N.D. 2020).

Defendant was properly found guilty of aggravated assault with a dangerous weapon because a rational fact finder could conclude beyond a reasonable doubt the flashlight used by defendant constituted a dangerous weapon as the victim testified that defendant struck him with a long cylinder black object that was very similar to a Maglite, that he saw defendant swing a cylinder object, and that defendant used a powerful overhand blow to strike the victim in the head. State v. McCreary, 2021 ND 212, 967 N.W.2d 447, 2021 N.D. LEXIS 214 (N.D. 2021).

DECISIONS UNDER PRIOR LAW

“Deadly Weapon.”

A “deadly weapon” included a dangerous weapon. State v. Hoerner, 55 N.D. 761, 215 N.W. 277, 1927 N.D. LEXIS 160 (N.D. 1927).

Trial court improperly instructed jury that unloaded pistol, which defendant neither attempted to fire nor to use as bludgeon, was “dangerous weapon” under this section; since that was factual question for jury to decide. United States v. Davis, 429 F.2d 552, 1970 U.S. App. LEXIS 7861 (8th Cir. N.D. 1970).

In prosecution for assault with a dangerous weapon, trial court did not err by refusing to instruct jury on simple assault where, despite fact that defendant had been drinking heavily the night of the occurrence, record supported court’s conclusion that defendant was coherent at time of act, that he had no difficulty understanding or being understood, and that he had no trouble walking. United States v. Thompson, 490 F.2d 1218, 1974 U.S. App. LEXIS 10415 (8th Cir. N.D. 1974).

In prosecution for assault with a dangerous weapon, trial court did not err by refusing to instruct the jury on simple assault where evidence was clear and undisputed that the weapon used in the assault was a loaded rifle and where defendant had fired a shot at his wife which caused an injury to the back of her head; since defendant’s action constituted use of dangerous weapon the evidence did not justify instruction on simple assault. United States v. Thompson, 490 F.2d 1218, 1974 U.S. App. LEXIS 10415 (8th Cir. N.D. 1974).

Although the common use of the term “assault and battery” enjoyed general acceptance, it was technically incorrect, and an unlawful offer or attempt to do violence to another constituted an assault without a battery. State v. Swanson, 225 N.W.2d 283, 1974 N.D. LEXIS 145 (N.D. 1974).

Disjunctive Indictment.

Where an indictment charged an assault or assault and battery with intent to kill, defendant could be convicted either of the crime charged, or assault, or assault and battery with intent to do bodily harm, or assault and battery, or simple assault. People v. Odell, 46 N.W. 601, 1 Dakota 197, 1875 Dakota LEXIS 11 (Dakota 1876); Territory v. Conrad, 46 N.W. 605, 1 Dakota 363, 1877 Dakota LEXIS 12 (N.D. 1877).

To constitute the felony of shooting or attempting to shoot another with intent to injure that person, there must have been shown an attempt to carry out such intent. State v. Gunderson, 42 N.D. 498, 173 N.W. 791, 1919 N.D. LEXIS 172 (N.D. 1919).

Jurisdiction.

A county court had no jurisdiction to hear and determine charge of aggravated assault and battery as defined by former section. State ex rel. Stricker v. Andrews, 62 N.D. 215, 242 N.W. 912 (1932).

Lesser Included Offenses.

Defendant, being tried for the crime of assault and battery committed with a deadly weapon, could be convicted of an assault and battery armed with a dangerous weapon, with intent to do bodily harm. State v. Johnson, 3 N.D. 150, 54 N.W. 547 (1893), explained, State v. Cruikshank, 13 N.D. 337, 100 N.W. 697 (1904) and State v. Hoerner, 55 N.D. 761, 215 N.W. 277, 1927 N.D. LEXIS 160 (N.D. 1927).

Under a charge of assault and battery with intent to kill, while armed with a deadly weapon, it was competent for the jury to return a verdict of guilty of an aggravated assault. State v. Maloney, 7 N.D. 119, 72 N.W. 927, 1897 N.D. LEXIS 44 (N.D. 1897).

On an indictment or information for assault and battery with a dangerous weapon, without justifiable or excusable cause, and with intent to do bodily harm, accused could be lawfully convicted of simple assault and battery. State v. Climie, 12 N.D. 33, 94 N.W. 574, 1903 N.D. LEXIS 3 (N.D. 1903).

An assault or assault and battery with any sharp or dangerous weapon did not include an assault or assault and battery with firearms for the purpose of shooting. State v. Cruikshank, 13 N.D. 337, 100 N.W. 697, 1904 N.D. LEXIS 36 (N.D. 1904).

Maiming by destroying someone’s leg was not an included offense in shooting with intent to kill. State v. Mattison, 13 N.D. 391, 100 N.W. 1091, 1904 N.D. LEXIS 56 (N.D. 1904).

Where an information charged the commission of assault by shooting with intent to kill, verdict finding defendant guilty of an assault without intent to kill was not erroneous, since the latter was necessarily included in the former. State v. Grassy, 50 N.D. 715, 197 N.W. 881, 1924 N.D. LEXIS 25 (N.D. 1924); State v. Hoerner, 55 N.D. 761, 215 N.W. 277, 1927 N.D. LEXIS 160 (N.D. 1927).

Assault and battery with a dangerous weapon with intent to do bodily harm, and without justifiable or excusable cause, was not a lesser and included offense in the crime of shooting at another with a firearm with intent to kill. State v. Muzzy, 66 N.D. 41, 262 N.W. 335, 1935 N.D. LEXIS 169 (N.D. 1935).

Rape Indictment.

An indictment for an assault with intent to commit rape was not required to set out the intended means to effect the crime. Territory v. Keyes, 38 N.W. 440, 5 Dakota 244, 1888 Dakota LEXIS 23 (Dakota 1888).

An indictment for assault with intent to rape was properly drawn under former section defining assault with intent to commit felony without deadly weapon. Territory v. Godfrey, 50 N.W. 481, 6 Dakota 46, 1888 Dakota LEXIS 59 (Dakota 1888).

A conviction for attempt to commit rape was not vulnerable to attack because the information also charged assault with an intent to commit a felony. State v. Murbach, 55 N.D. 846, 215 N.W. 552, 1927 N.D. LEXIS 177 (N.D. 1927).

Under an information charging the defendant with the crime of rape in the first degree by force and violence, a verdict of guilty of assault with intent to commit rape could be returned. State v. Becker, 74 N.D. 293, 21 N.W.2d 532, 1946 N.D. LEXIS 64 (N.D. 1946).

Sentence.

Imposition of sentence to imprisonment in the penitentiary from one to three years was not warranted by a verdict finding the defendants guilty of an assault with a dangerous weapon with intent to do bodily harm, without justifiable or excusable cause, where defendants were charged with shooting or attempting to shoot with intent to kill, or of shooting or attempting to shoot with intent to do bodily harm. State v. Mattison, 13 N.D. 391, 100 N.W. 1091, 1904 N.D. LEXIS 56 (N.D. 1904).

One convicted of shooting at another with a firearm with intent to do bodily harm could not be sentenced to imprisonment in the county jail and fined. State v. Hunskor, 16 N.D. 420, 114 N.W. 996, 1908 N.D. LEXIS 122 (N.D. 1908).

“Unlawful” Assault.

Mere anger on the part of a deputy sheriff when he struck plaintiff, who was intoxicated, while making an interrupted arrest, did not make such an assault unlawful. Schell v. Collis, 83 N.W.2d 422, 1957 N.D. LEXIS 126 (N.D. 1957).

The circumstances of the assault rather than the result had to control. Schell v. Collis, 83 N.W.2d 422, 1957 N.D. LEXIS 126 (N.D. 1957).

Verdict.

The strict standards of logical consistency need not be applied to jury verdicts in criminal cases, and where jury had been instructed concerning the elements of assault and battery, and also instructed on the lesser included offense of assault, they could properly acquit defendant on charges of assault and battery, and convict him of assault. State v. Swanson, 225 N.W.2d 283, 1974 N.D. LEXIS 145 (N.D. 1974).

Weapon Essential.

A weapon was an essential feature of the crime of shooting at another with any kind of firearm or of assault and battery by means of a deadly weapon. State v. Johnson, 3 N.D. 150, 54 N.W. 547 (1893), explained, State v. Cruikshank, 13 N.D. 337, 100 N.W. 697 (1904) and State v. Hoerner, 55 N.D. 761, 215 N.W. 277, 1927 N.D. LEXIS 160 (N.D. 1927).

Collateral References.

Homicide: acquittal on homicide charge as bar to subsequent prosecution for assault and battery or vice versa, 37 A.L.R.2d 1068.

Deadly or dangerous weapon, intent to do physical harm as essential element of crime of assault with, 92 A.L.R.2d 635.

Sexual nature of physical contact as aggravating offense, 63 A.L.R.3d 225.

Pocket or clasp knife as deadly or dangerous weapon for purposes of statute aggravating offenses such as assault, robbery, or homicide, 100 A.L.R.3d 287.

Dog as deadly or dangerous weapon for purposes of statute aggravating offenses such as assault and robbery, 7 A.L.R.4th 607.

Walking cane as deadly or dangerous weapon for purpose of statutes aggravating offenses such as assault and robbery, 8 A.L.R.4th 842.

Parts of the human body, other than feet, as deadly or dangerous weapons for purposes of statutes aggravating offenses such as assault and robbery, 8 A.L.R.4th 1268.

Injury or death caused by assault as within coverage of no-fault motor vehicle insurance, 44 A.L.R.4th 1010.

Fact that gun was unloaded as affecting criminal responsibility, 68 A.L.R.4th 507.

Criminal assault or battery statutes making attack on elderly person a special or aggravated offense, 73 A.L.R.4th 1123.

Franchisor’s tort liability for injuries allegedly caused by assault or other criminal activity on or near franchise premises, 2 A.L.R.5th 369.

Kicking as aggravated assault, or assault with dangerous or deadly weapon, 19 A.L.R.5th 823.

Validity, construction, and effect of assault and battery exclusion in liability insurance policy at issue, 44 A.L.R.5th 91.

Sufficiency of allegations or evidence of victim’s mental injury or emotional distress to support charge of aggravated degree of rape, sodomy, or other sexual offense, 44 A.L.R.5th 651.

Attempt to commit assault as criminal offense, 93 A.L.R.5th 683.

Dog as deadly or dangerous weapon for purposes of statutes aggravating offenses such as assault and robbery, 124 A.L.R. 5th 657.

Parts of Human Body, other than Feet, as Deadly or Dangerous Weapons or Instrumentalities for Purposes of Statutes Aggravating Offenses such as Assault and Robbery. 67 A.L.R.6th 103.

The 2015 amendment of this section by section 1 of chapter 104, S.L. 2015 became effective August 1, 2015.

12.1-17-03. Reckless endangerment.

A person is guilty of an offense if he creates a substantial risk of serious bodily injury or death to another. The offense is a class C felony if the circumstances manifest his extreme indifference to the value of human life. Otherwise it is a class A misdemeanor. There is risk within the meaning of this section if the potential for harm exists, whether or not a particular person’s safety is actually jeopardized.

Source: S.L. 1973, ch. 116, § 17.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Notes to Decisions

Constitutionality.

This section does not operate as a denial of due process or equal protection of the laws nor is it unconstitutionally vague. State v. Hanson, 256 N.W.2d 364, 1977 N.D. LEXIS 152 (N.D. 1977).

Allegation Sufficient.

Information which alleged the essential elements of both this section and the armed offender statute, N.D.C.C. § 12.1-32-02.1, gave defendant sufficient notice to the possible application of N.D.C.C. § 12.1-32-02.1 to his reckless endangerment charge, even though the information did not contain the specific language “threatens or menaces another with imminent bodily injury with a dangerous weapon” used in N.D.C.C. § 12.1-32-02.1. State v. Meier, 447 N.W.2d 506, 1989 N.D. LEXIS 196 (N.D. 1989).

Criminal Complaint Supporting Charge.

In light of the fact that the criminal complaint on its face supported a charge of reckless endangerment, which has been described by the state’s attorney as a class A misdemeanor, and no evidence had been received in the case through affidavits or testimony to disprove the allegations of the complaint, the court clearly erred in dismissing the complaint, where the constitutional question upon which dismissal was based could not be resolved apart from the facts. State v. Swanson, 407 N.W.2d 204, 1987 N.D. LEXIS 325 (N.D. 1987).

Culpability Required.

Recklessly is the culpability required by this section. State v. Hanson, 256 N.W.2d 364, 1977 N.D. LEXIS 152 (N.D. 1977).

Jury verdict convincing defendant of reckless endangerment and negligent homicide but acquitting him of manslaughter was not inconsistent; defendant, who was driving a vehicle in an accident that killed one and injured four, was reckless in his endangerment of his passengers, although the jury declined to convict him of manslaughter, which also requires recklessness, in the later death. State v. Jahner, 2003 ND 36, 657 N.W.2d 266, 2003 N.D. LEXIS 32 (N.D. 2003).

Elements of Offense.

Where risk is caused by firing of a gun, proof of possession of the weapon or of a certain gun is not an essential element of reckless endangerment. State v. Kroeplin, 266 N.W.2d 537, 1978 N.D. LEXIS 250 (N.D. 1978).

A person is guilty of reckless endangerment where his actions indicate that he has disregarded a risk to human life by creating the potential for harm, even if no person was actually placed in danger by the conduct. State v. Meier, 422 N.W.2d 381, 1988 N.D. LEXIS 90 (N.D. 1988).

For purposes of reckless endangerment, the criminal code does not specifically define the term “create” used in N.D.C.C. § 12.1-17-03 and it is not ambiguous; therefore, it should be given its plain, ordinary, and commonly understood meaning. The plain meaning of “create” includes to produce or bring about by a course of action or behavior. State v. O'Toole, 2009 ND 174, 773 N.W.2d 201, 2009 N.D. LEXIS 184 (N.D. 2009).

Evidence Sufficient.

Evidence held sufficient to prove that juvenile defendant committed offenses of reckless endangerment and conspiracy to commit reckless endangerment. Rainesalo v. P.A. (In the Interest of P.A.), 1997 ND 146, 566 N.W.2d 422, 1997 N.D. LEXIS 147 (N.D. 1997).

There was sufficient evidence presented to uphold a conviction for reckless endangerment where defendant’s brother testified that defendant shot a rifle in his direction from a car; the jury believed the brother’s testimony over the conflicting evidence offered by defendant. State v. Zahn, 2007 ND 2, 725 N.W.2d 894, 2007 N.D. LEXIS 6 (N.D. 2007).

During a traffic stop, a police officer made a passenger stand outside after midnight in freezing cold weather and refused to allow him to sit in the officer’s car; the passenger was later treated for frostbite. The evidence was sufficient to support the police officer’s conviction for reckless endangerment in violation of N.D.C.C. § 12.1-17-03; by refusing to allow the passenger to sit in his squad car, the officer created a substantial risk of bodily injury. State v. O'Toole, 2009 ND 174, 773 N.W.2d 201, 2009 N.D. LEXIS 184 (N.D. 2009).

Felony.

Intentionally pointing a loaded weapon at a person with the intent to shoot around the person to scare him manifests such an extreme indifference to the value of human life as to make the conduct a felony. United States v. Wallette, 580 F.2d 335, 1978 U.S. App. LEXIS 9953 (8th Cir. N.D. 1978).

Intent.

Only a general intent is required for the offense of reckless endangerment. State v. Kroeplin, 266 N.W.2d 537, 1978 N.D. LEXIS 250 (N.D. 1978).

Jury Instruction Adequate.

State, to convict a person of reckless endangerment, has to prove that at least one person was endangered or jeopardized by defendant’s conduct, but the State need not identify the person or persons endangered or jeopardized; although the omission of the word “particular,” which prefaces “person’s safety” in N.D.C.C. § 12.1-17-03, from the pattern jury instruction’s definition of reckless endangerment rendered that part of the instruction erroneous, the instruction adequately and correctly informed the jury of the applicable law where the remainder of the instruction stating the elements of the offense made reference to “a particular person.” State v. Jaster, 2004 ND 223, 690 N.W.2d 213, 2004 N.D. LEXIS 368 (N.D. 2004).

Trial court’s reckless endangerment jury instruction was not obvious error because even though the instruction did not include the word “particular,” the instruction, read as a whole, was not misleading or confusing and fairly advised the jury of the law on the essential issues of the case, which involved a shooting at a movie theater parking lot. State v. Estrada, 2013 ND 79, 830 N.W.2d 617, 2013 N.D. LEXIS 80 (N.D. 2013).

Lesser Included Offense.

Where defendant was charged with attempted murder for his involvement in a police shoot-out, the trial court properly denied his requested instruction on reckless endangerment as an included offense. A person can be convicted of attempted murder for having taken a substantial step toward commission of the crime of murder even if there never was, in fact, a substantial risk of serious bodily injury or death to another as required for reckless endangerment; in this case, defendant was properly convicted of both offenses for firing shots at police officers. State v. Keller, 2005 ND 86, 695 N.W.2d 703, 2005 N.D. LEXIS 94 (N.D. 2005).

Pointing An Unloaded Gun.

Pointing a gun, later determined to be unloaded, constitutes reckless endangerment. State v. Meier, 422 N.W.2d 381, 1988 N.D. LEXIS 90 (N.D. 1988).

Prosecutorial Misconduct.

In defendant’s trial for reckless endangerment and aggravated assault, a prosecutor’s comments about not believing defendant’s version of events was not obvious error, and any prejudice was cured by the trial court’s instructions. Also, the prosecutor’s comment during the closing, that defendant had no excuse, was not an attempt to shift the burden; the burden of proof was sufficiently explained in the trial court’s jury instructions on reasonable doubt and the defense of excuse. State v. Clark, 2004 ND 85, 678 N.W.2d 765, 2004 N.D. LEXIS 183 (N.D. 2004).

Sentencing.

Defendant who was convicted of reckless endangerment as a result of pointing a rifle, later determined to have been unloaded, at two police officers, was properly sentenced under section 12.1-32-02.1. State v. Meier, 447 N.W.2d 506, 1989 N.D. LEXIS 196 (N.D. 1989).

12.1-17-04. Terrorizing.

A person is guilty of a class C felony if, with intent to place another human being in fear for that human being’s or another’s safety or to cause evacuation of a building, place of assembly, or facility of public transportation, or otherwise to cause serious disruption or public inconvenience, or in reckless disregard of the risk of causing such terror, disruption, or inconvenience, the person:

  1. Threatens to commit any crime of violence or act dangerous to human life; or
  2. Falsely informs another that a situation dangerous to human life or commission of a crime of violence is imminent knowing that the information is false.

Source: S.L. 1973, ch. 116, § 17; 1983, ch. 166, § 1.

Cross-References.

Causing catastrophe a felony, see N.D.C.C. § 12.1-21-04.

Penalty for class C felony, see N.D.C.C. § 12.1-32-01.

Notes to Decisions

Construction.

Defendant provided no authority for the proposition that threats against law enforcement officers were an exception from the statute; the plain language of the statute did not provide any “law enforcement exception” for conduct that violated the statute. State v. Johnson, 2021 ND 161, 964 N.W.2d 500, 2021 N.D. LEXIS 160 (N.D. 2021).

Culpability Required.

Evidence.

—Admissible.

—Held Sufficient.

—Prior Assaults.

Included Offenses.

Instructions.

Intent.

Prosecutor’s Statements to the Jury.

Questions of Fact.

Self-Defense.

Culpability Required.

The degree of culpability required is that the act be done “willfully” as defined in N.D.C.C. § 12.1-02-02. State v. Hass, 268 N.W.2d 456, 1978 N.D. LEXIS 253 (N.D. 1978).

Evidence.

In a terrorizing prosecution, the First Amendment did not protect defendant's statements because the statements' recipients thought the statements were a serious threat. State v. Brossart, 2015 ND 1, 858 N.W.2d 275, 2015 N.D. LEXIS 1 (N.D. 2015).

—Admissible.

The court could rely upon the testimony of victim that she got a restraining order against the defendant, as proof of the element of intent to place another in fear, though the state had failed to fulfill a procedural requirement for the charge of stalking which was also filed against the defendant but dismissed due to the state’s failure to introduce a certified copy of the restraining order. State v. Touche, 549 N.W.2d 193, 1996 N.D. LEXIS 152 (N.D. 1996).

—Held Sufficient.

Testimony that the defendant met with the victim, picked her up and drove her out to a remote gravel road, where he held a knife to her throat and made verbal threats to her, and that only by verbally patronizing the defendant was the victim able to talk defendant out of harming her, supported a conviction of terrorizing. State v. Kaiser, 417 N.W.2d 376, 1987 N.D. LEXIS 459 (N.D. 1987).

Record contained competent evidence to permit the jury to find defendant guilty of terrorizing. State v. Hondl, 506 N.W.2d 404, 1993 N.D. LEXIS 181 (N.D. 1993).

Where the defendant entered a friend’s unlocked home at 2 a.m. while intoxicated, brandished an open pocket knife and told the friend he was going to kill him, and made threatening gestures toward the friend’s daughter, the evidence was sufficient to sustain the defendant’s conviction for terrorizing. State v. Delaney, 1999 ND 189, 601 N.W.2d 573, 1999 N.D. LEXIS 219 (N.D. 1999).

Threat did not have to be made verbally to be a terroristic threat under N.D.C.C. § 12.1-17-04. Although defendant’s wife was only outside in the freezing weather for a couple of minutes, for that time, she did not know if she was locked out of their home or not; thus, defendant’s action of throwing her outside did constitute a threat to commit an act dangerous to human life and the evidence supported his conviction. State v. Laib, 2005 ND 191, 705 N.W.2d 815, 2005 N.D. LEXIS 233 (N.D. 2005).

Denial of defendant’s motion for judgment of acquittal on his terrorizing conviction was affirmed because the trial court properly exercised its discretion in allowing the jury to deliberate and clarify its verdict without first polling the jury individually when it was clear there was not unanimity on the verdict as read, and there was sufficient evidence to sustain the terrorizing conviction where defendant’s girlfriend testified that defendant picked her up, verbally abused her and threw her against the kitchen wall, which caused her to lose consciousness. State v. Kautzman, 2007 ND 133, 738 N.W.2d 1, 2007 N.D. LEXIS 133 (N.D. 2007).

It was reasonable for the jury to find defendant guilty of terrorizing because his statement asserting that he would break his wife’s neck and kill her was a threat of violence dangerous to human life; the statement, taken in conjunction with the attack on the wife, allowed the jury to infer defendant made the statement either intentionally or with reckless disregard of the risk of causing his wife fear. State v. Abdiwali Mohamud, 2019 ND 101, 925 N.W.2d 396, 2019 N.D. LEXIS 109 (N.D. 2019).

There was sufficient evidence to convict defendant of terrorizing, including defendant’s multiple threats to kill or harm law enforcement and their families, including the officers who appeared at the trial court and the prosecuting attorneys, which could reasonable be construed as threats of a crime of violence or acts dangerous to human life. State v. Norton, 2019 ND 191, 930 N.W.2d 635, 2019 N.D. LEXIS 198 (N.D. 2019).

Evidence was sufficient to convict defendant of terrorizing because defendant fired a rifle into the victim’s house, forced entry into the house, and pointed the rifle at the victim; and the victim testified he was scared for his and his family’s lives. State v. Yoney, 2020 ND 118, 943 N.W.2d 791, 2020 N.D. LEXIS 126 (N.D. 2020).

Substantial evidence was presented to the jury to warrant a conviction for terrorizing because a sheriff testified that he was afraid for his safety and his family members; the State presented evidence that other people were also concerned for the sheriff’s safety based on defendant threats, that the FBI National Threat Organization had received a call from someone concerned about the sheriff’s safety, and that defendant had engaged in his conduct intentionally and recklessly. State v. Johnson, 2021 ND 161, 2021 N.D. LEXIS 160 (N.D. 2021).

—Prior Assaults.

In a prosecution for terrorizing, the State was properly allowed to introduce evidence of prior assaults by the defendant on the victim where the trial court limited the evidence to one incident, and did not allow the State to delve into graphic details of the assault, and where the trial court only allowed the evidence to be used as a brief background of the relationship between the assailant and the victim. State v. Gefroh, 495 N.W.2d 651, 1993 N.D. LEXIS 3 (N.D. 1993).

Included Offenses.

Court did not err in refusing to instruct jury that disorderly conduct was a lesser included offense of terrorizing, where, if jury had believed defendant’s assertion he lacked the requisite intent for his statements to constitute terrorizing, the jury could also not convict him on the charge of disorderly conduct. State v. Carlson, 1997 ND 7, 559 N.W.2d 802, 1997 N.D. LEXIS 6 (N.D. 1997).

Instructions.

Trial court did not err in denying defendant’s proposed instruction on “transitory anger” which misstated that aspect of the law that threats may constitute terrorizing regardless of whether the defendant intends to carry them out or inflict actual injury. State v. Carlson, 1997 ND 7, 559 N.W.2d 802, 1997 N.D. LEXIS 6 (N.D. 1997).

In a terrorizing prosecution, the jury was not properly instructed because (1) “threat” was not defined, and (2) the jury was not told to consider facts from the perspective of a reasonable person in the recipient's position. State v. Brossart, 2015 ND 1, 858 N.W.2d 275, 2015 N.D. LEXIS 1 (N.D. 2015).

Intent.

There was sufficient evidence to establish the element of intent where defendant’s threat was made to a person other than the victim, who then communicated the threat to the victim. State v. Olson, 552 N.W.2d 362, 1996 N.D. LEXIS 190 (N.D. 1996).

Prosecutor’s Statements to the Jury.

In a criminal trial for terrorizing, the prosecutor’s statements to the jury that the victim had placed her trust in them, and that they were the conscience of the community, and references to bringing a body into court, although arguably improper, did not affect the verdict prejudicially or deprive the defendant of a fair trial. State v. Kaiser, 417 N.W.2d 376, 1987 N.D. LEXIS 459 (N.D. 1987).

Questions of Fact.

The determination whether particular words constitute a threat is a question of fact. State v. Zeno, 490 N.W.2d 707, 1992 N.D. LEXIS 198 (N.D. 1992).

Self-Defense.

Where defendant claimed self-defense to a charge under this section, court was required to give instruction based on justification section, 12.1-05-01. State v. Hass, 268 N.W.2d 456, 1978 N.D. LEXIS 253 (N.D. 1978).

Collateral References.

Validity and construction of terroristic threat statutes, 45 A.L.R.4th 949.

12.1-17-05. Menacing.

A person is guilty of a class A misdemeanor if he knowingly places or attempts to place another human being in fear by menacing him with imminent serious bodily injury.

Source: S.L. 1973, ch. 116, § 17.

Cross-References.

Penalty for class A misdemeanor, see N.D.C.C. § 12.1-32-01.

Notes to Decisions

Imminent.

Defendant’s words, “when you are up here alone, we will get you”, spoke to the future and did not denote sufficient immediacy. And, taken in context, no aspect of immediacy could be inferred: defendant made the statement as he was leaving the scene, and in addition, defendant, unlike one of his antagonists, was unarmed. State v. Kurle, 390 N.W.2d 48, 1986 N.D. LEXIS 366 (N.D. 1986).

Defendant’s conviction for menacing was supported by the evidence because the record revealed that during an encounter with police officers, defendant threatened to “kick their ass” and “put them in the hospital,” and he took at least one step toward the officers before one officer subdued him; defendant’s statements to the officers denoted sufficient imminency. State v. Bruce, 2012 ND 140, 818 N.W.2d 747, 2012 N.D. LEXIS 134 (N.D. 2012).

12.1-17-06. Criminal coercion.

  1. A person is guilty of a class A misdemeanor if, with intent to compel another to engage in or refrain from conduct, he threatens to:
    1. Commit any crime;
    2. Accuse anyone of a crime;
    3. Expose a secret or publicize an asserted fact, whether true or false, tending to subject any person, living or deceased, to hatred, contempt, or ridicule, or to impair another’s credit or business repute; or
    4. Take or withhold official action as a public servant or cause a public servant to take or withhold official action.
  2. It is an affirmative defense to a prosecution under this section that the actor believed, whether or not mistakenly:
    1. That the primary purpose of the threat was to cause the other to conduct himself in his own best interest; or
    2. That a purpose of the threat was to cause the other to desist from misbehavior, engage in behavior from which he could not lawfully abstain, make good a wrong done by him, or refrain from taking any action or responsibility for which he was disqualified.

Source: S.L. 1973, ch. 116, § 17.

Cross-References.

Penalty for class A misdemeanor, see N.D.C.C. § 12.1-32-01.

Collateral References.

Criminal liability of corporation for extortion, false pretenses or similar offenses, 49 A.L.R.3d 820.

Truth as defense to state charge of criminal intimidation, extortion, blackmail, threats, and the like, based upon threats to disclose information about victim, 39 A.L.R.4th 1011.

12.1-17-07. Harassment.

  1. A person is guilty of an offense if, with intent to frighten or harass another, the person:
    1. Communicates in writing or by electronic communication a threat to inflict injury on any person, to any person’s reputation, or to any property;
    2. Makes a telephone call anonymously or in offensively coarse language;
    3. Makes repeated telephone calls or other electronic communication, whether or not a conversation ensues, with no purpose of legitimate communication; or
    4. Communicates a falsehood in writing or by electronic communication and causes mental anguish.
  2. The offense is a class A misdemeanor if it is under subdivision a of subsection 1 or subsection 4. Otherwise it is a class B misdemeanor.
  3. Any offense defined herein and committed by use of electronic communication may be deemed to have been committed at either the place at which the electronic communication was made or at the place where the electronic communication was received.
  4. A person is guilty of an offense if the person initiates communication with a 911 emergency line, public safety answering point, or an emergency responder communication system with the intent to annoy or harass another person or a public safety agency or who makes a false report to a public safety agency.
    1. Intent to annoy or harass is established by proof of one or more calls with no legitimate emergency purpose.
    2. Upon conviction of a violation of this subsection, a person is also liable for all costs incurred by any unnecessary emergency response.
  5. Any offense defined herein is deemed communicated in writing if it is transmitted electronically, by electronic mail, facsimile, or other similar means. Electronic communication means transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photo-electronic, or photo-optical system.

Source: S.L. 1973, ch. 116, § 17; 1975, ch. 116, § 16; 1995, ch. 125, § 1; 1999, ch. 124, § 1; 2013, ch. 103, § 1.

Cross-References.

Penalty for class A misdemeanor, see N.D.C.C. § 12.1-32-01.

Notes to Decisions

Sufficient Evidence.

Evidence was sufficient to sustain defendant’s conviction for harassment when defendant sent two communications to an attorney, and the attorney testified that she was threatened by the communications. State v. Curtis, 2008 ND 93, 748 N.W.2d 709, 2008 N.D. LEXIS 87 (N.D. 2008).

State produced sufficient evidence to raise a reasonable inference that defendant had communicated threats by telephone to inflict injury on the victim’s property and his son; the evidence presented created reasonable inferences that defendant acted with the intent to frighten or harass another. State v. Dahl, 2009 ND 204, 776 N.W.2d 37, 2009 N.D. LEXIS 211 (N.D. 2009).

DECISIONS UNDER PRIOR LAW

Apprehension.

Under repealed N.D.C.C. § 8-10-07.1, relating to telephone calls with intent to annoy, issue was whether circumstances justified apprehension by ordinary hearer, not whether threat actually caused recipient to become apprehensive. State v. Weippert, 237 N.W.2d 1, 1975 N.D. LEXIS 146 (N.D. 1975).

Collateral References.

Misuse of telephone as minor criminal offense, 97 A.L.R.2d 503.

Forum state’s jurisdiction over nonresident defendant in action based on obscene or threatening telephone call from out of state, 37 A.L.R.4th 852.

Telephone calls as nuisance, 53 A.L.R.4th 1153.

Law Reviews.

Protecting Victims by Working Around the System and Within the System: Statutory Protection for Emotional Abuse in the Domestic Violence Context, 81 N.D. L. Rev. 837 (2005).

12.1-17-07.1. Stalking.

  1. As used in this section:
    1. “Course of conduct” means a pattern of conduct consisting of two or more acts evidencing a continuity of purpose. The term does not include constitutionally protected activity.
    2. “Immediate family” means a spouse, parent, child, or sibling. The term also includes any other individual who regularly resides in the household or who within the prior six months regularly resided in the household.
    3. “Stalk” means:
      1. To engage in an intentional course of conduct directed at a specific person which frightens, intimidates, or harasses that person and which serves no legitimate purpose. The course of conduct may be directed toward that person or a member of that person’s immediate family and must cause a reasonable person to experience fear, intimidation, or harassment; or
      2. The unauthorized tracking of the person’s movements or location through the use of a global positioning system or other electronic means that would cause a reasonable person to be frightened, intimidated, or harassed and which serves no legitimate purpose.
  2. A person may not intentionally stalk another person.
  3. In any prosecution under this section, it is not a defense that the actor was not given actual notice that the person did not want the actor to contact or follow the person; nor is it a defense that the actor did not intend to frighten, intimidate, or harass the person. An attempt to contact or follow a person after being given actual notice that the person does not want to be contacted or followed is prima facie evidence that the actor intends to stalk that person.
  4. In any prosecution under this section, it is a defense that a private investigator licensed under chapter 43-30 or a peace officer licensed under chapter 12-63 was acting within the scope of employment.
  5. If a person claims to have been engaged in a constitutionally protected activity, the court shall determine the validity of the claim as a matter of law and, if found valid, shall exclude evidence of the activity.
    1. A person who violates this section is guilty of a class C felony if:
      1. The person previously has been convicted of violating section 12.1-17-01, 12.1-17-01.1, 12.1-17-01.2, 12.1-17-02, 12.1-17-04, 12.1-17-05, or 12.1-17-07, or a similar offense from another court in North Dakota, a court of record in the United States, or a tribal court, involving the victim of the stalking;
      2. The stalking violates a court order issued under chapter 14-07.1 protecting the victim of the stalking, if the person had notice of the court order; or
      3. The person previously has been convicted of violating this section.
    2. If subdivision a does not apply, a person who violates this section is guilty of a class A misdemeanor.

Source: S.L. 1993, ch. 120, § 1; 1995, ch. 126, § 1; 2011, ch. 96, § 1; 2015, ch. 105, § 1, effective August 1, 2015; 2019, ch. 107, § 4, effective August 1, 2019.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Notification of stalking law when domestic violence protective order issued, see N.D.C.C. § 14-07.1-03.1.

Notes to Decisions

Constitutionally Protected Activity.

Trial court did not err in not excluding evidence of defendant’s conduct during a trial for stalking because defendant was not engaged in constitutionally protected activities under N.D.C.C. § 12.1-17-07.1(5); the activities defendant engaged in were not constitutionally protected because defendant’s right to travel had been restricted by a judicial order. State v. Holbach, 2009 ND 37, 763 N.W.2d 761, 2009 N.D. LEXIS 59 (N.D.), cert. denied, 558 U.S. 893, 130 S. Ct. 232, 175 L. Ed. 2d 160, 2009 U.S. LEXIS 6123 (U.S. 2009).

Domestic Violence Protective Order.

State’s failure to comply with N.D.C.C. § 14-07.1-03.1, by failing to include a copy of this section with an order issued under sections 14-07.1-02 or 14-07.1-03, does not deprive the trial court of jurisdiction to hear the charge against one accused of violating a domestic violence protection order; however dismissal might be appropriate if actual prejudice is shown. State v. Sundquist, 542 N.W.2d 90, 1996 N.D. LEXIS 11 (N.D. 1996).

Evidence Sufficient.

Evidence was sufficient to convict defendant under this section, where his wife, who had obtained protective order, testified defendant called her about twenty times and made personal contact on three separate occasions when he was not accompanied by a peace officer. State v. Keller, 550 N.W.2d 411, 1996 N.D. LEXIS 168 (N.D. 1996).

Defendant did not have standing to claim that the statute was unconstitutionally vague because a reasonable person would have known that defendant’s conduct was prohibited by statute. Defendant had notice that the victim did not want to have contact with defendant and, as a result of defendant’s conduct, the victim experienced fear, intimidation, or harassment; however, defendant continued the conduct. State v. Holbach, 2009 ND 37, 763 N.W.2d 761, 2009 N.D. LEXIS 59 (N.D.), cert. denied, 558 U.S. 893, 130 S. Ct. 232, 175 L. Ed. 2d 160, 2009 U.S. LEXIS 6123 (U.S. 2009).

Collateral References.

Validity, construction, and application of stalking statutes, 29 A.L.R.5th 487.

Law Reviews.

North Dakota’s Stalking Law: Criminalizing the Crime Before the Crime, 70 N.D. L. Rev. 159 (1994).

Protecting Victims by Working Around the System and Within the System: Statutory Protection for Emotional Abuse in the Domestic Violence Context, 81 N.D. L. Rev. 837 (2005).

12.1-17-07.2. Distribution of intimate images without or against consent — Penalty.

  1. As used in this section:
    1. “Distribute” means selling, exhibiting, displaying, wholesaling, retailing, providing, giving, granting admission to, providing access to, or otherwise transferring or presenting an image to another individual, with or without consideration.
    2. “Hosting company” means a person that provides services or facilities for storing or distributing content over the internet without editorial or creative alteration of the content.
    3. “Intimate image” means any visual depiction, photograph, film, video, recording, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, that depicts:
      1. Exposed human male or female genitals or pubic area, with less than an opaque covering;
      2. A female breast with less than an opaque covering, or any portion of the female breast below the top of the areola; or
      3. The individual engaged in any sexually explicit conduct.
    4. “Service provider” means an internet service provider, including a person who leases or rents a wire or cable for the transmission of data.
    5. “Sexually explicit conduct” means actual or simulated:
      1. Sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;
      2. Masturbation;
      3. Bestiality;
      4. Sadistic or masochistic activities;
      5. Exhibition of the genitals, pubic region, buttocks, or female breast of any individual;
      6. Visual depiction of nudity or partial nudity;
      7. Fondling or touching of the genitals, pubic region, buttocks, or female breast; or
      8. Explicit representation of the defecation or urination functions.
    6. “Simulated sexually explicit conduct” means a feigned or pretended act of sexually explicit conduct that duplicates, within the perception of an average person, the appearance of an actual act of sexually explicit conduct.
  2. A person commits the offense of distribution of intimate images if the person knowingly or intentionally distributes to any third party any intimate image of an individual eighteen years of age or older, if:
    1. The person knows that the depicted individual has not given consent to the person to distribute the intimate image;
    2. The intimate image was created by or provided to the person under circumstances in which the individual has a reasonable expectation of privacy; and
    3. Actual emotional distress or harm is caused to the individual as a result of the distribution under this section.
  3. This section does not apply to:
    1. Lawful practices of law enforcement agencies;
    2. Prosecutorial agency functions;
    3. The reporting of a criminal offense;
    4. Court proceedings or any other judicial proceeding;
    5. Lawful and generally accepted medical practices and procedures;
    6. An intimate image if the individual portrayed in the image voluntarily allows public exposure of the image; or
    7. An intimate image that is portrayed in a lawful commercial setting.
  4. This section also does not apply to:
    1. An internet service provider or interactive computer service, as defined in 47 U.S.C. 230(f)(2);
    2. A provider of an electronic communications service, as defined in 18 U.S.C. 2510;
    3. A telecommunications service, information service, or mobile service, as defined in 47 U.S.C. 153, including a commercial mobile service, as defined in 47 U.S.C. 332(d);
    4. A cable operator, as defined in 47 U.S.C. 552, if:
      1. The distribution of an intimate image by the cable operator occurs only incidentally through the operator’s function of:
        1. Transmitting or routing data from one person to another person; or
        2. Providing a connection between one person and another person;
      2. The operator does not intentionally aid or abet in the distribution of the intimate image; and
      3. The operator does not knowingly receive from or through a person who distributes the intimate image a fee greater than the fee generally charged by the operator, as a specific condition for permitting the person to distribute the intimate image; or
    5. A hosting company, if:
      1. The distribution of an intimate image by the hosting company occurs only incidentally through the hosting company’s function of providing data storage space or data caching to a person;
      2. The hosting company does not intentionally engage, aid, or abet in the distribution of the intimate image; and
      3. The hosting company does not knowingly receive from or through a person who distributes the intimate image a fee greater than the fee generally charged by the provider, as a specific condition for permitting the person to distribute, store, or cache the intimate image.
  5. Distribution of an intimate image is a class A misdemeanor.

History. S.L. 2015, ch. 106, § 1, effective August 1, 2015.

12.1-17-08. Consent as a defense.

  1. When conduct is an offense because it causes or threatens bodily injury, consent to such conduct or to the infliction of such injury by all persons injured or threatened by the conduct is a defense if:
    1. Neither the injury inflicted nor the injury threatened is such as to jeopardize life or seriously impair health;
    2. The conduct and the injury are reasonably foreseeable hazards of joint participation in a lawful athletic contest or competitive sport; or
    3. The conduct and the injury are reasonably foreseeable hazards of an occupation or profession or of medical or scientific experimentation conducted by recognized methods, and the persons subjected to such conduct or injury, having been made aware of the risks involved, consent to the performance of the conduct or the infliction of the injury.
  2. Assent does not constitute consent, within the meaning of this section, if:
    1. It is given by a person who is legally incompetent to authorize the conduct charged to constitute the offense and such incompetence is manifest or known to the actor;
    2. It is given by a person who by reason of youth, mental disease or defect, or intoxication is manifestly unable or known by the actor to be unable to make a reasonable judgment as to the nature or harmfulness of the conduct charged to constitute the offense; or
    3. It is induced by force, duress, or deception.

Source: S.L. 1973, ch. 116, § 17.

Collateral References.

Assault with intent to commit unnatural sex act upon minor as affected by latter’s consent, 65 A.L.R.2d 748.

Consent as a defense in prosecution for sodomy, 58 A.L.R.3d 636.

Consent as defense to charge of criminal assault and battery, 58 A.L.R.3d 662.

Notes to Decisions

Question for Jury.

District court erred in failing to provide defendant’s requested jury instructions on consent and self-defense because whether the victim consented to the fight and whether the injury inflicted by defendant was such as to jeopardize life or seriously impair health were questions for the jury, and the district court impermissibly evaluated video evidence of the incident when it stated the video spoke for itself and defendant could have just walked away. City of Jamestown v. Kastet, 2022 ND 40, 970 N.W.2d 187, 2022 N.D. LEXIS 41 (N.D. 2022).

12.1-17-09. Killing or injury of law enforcement support animal — Definition — Penalty.

  1. A person is guilty of a class C felony and is subject to a civil penalty of up to ten thousand dollars if that person willfully and unjustifiably kills, shoots, tortures, torments, beats, kicks, strikes, mutilates, disables, or otherwise injures a law enforcement support animal.
  2. A person is guilty of a class A misdemeanor and is subject to a civil penalty of up to five thousand dollars if that person willfully:
    1. Harasses, taunts, or provokes a law enforcement support animal;
    2. Interferes with a law enforcement support animal while the animal is working; or
    3. Interferes with the individual handling the animal.
  3. For purposes of this section, “law enforcement support animal” means any animal used by or on behalf of a law enforcement officer in the performance of the officer’s functions and duties, including crowd control, corrections, arson investigation, or search and rescue, regardless of whether the animal is on or off duty.
  4. This section does not apply to a law enforcement officer or a veterinarian who terminates the life of a law enforcement support animal to relieve the animal of undue suffering and pain.

Source: S.L. 1995, ch. 127, § 1; 2009, ch. 130, § 1.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

12.1-17-10. Hazing — Penalty.

A person is guilty of an offense when, in the course of another person’s initiation into or affiliation with any organization, the person willfully engages in conduct that creates a substantial risk of physical injury to that other person or a third person. As used in this section, “conduct” means any treatment or forced physical activity that is likely to adversely affect the physical health or safety of that other person or a third person, or which subjects that other person or third person to extreme mental stress, and may include extended deprivation of sleep or rest or extended isolation, whipping, beating, branding, forced calisthenics, overexposure to the weather, and forced consumption of any food, liquor, beverage, drug, or other substance. The offense is a class A misdemeanor if the actor’s conduct causes physical injury, otherwise the offense is a class B misdemeanor.

Source: S.L. 1995, ch. 128, § 1.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Sexual act or conduct as part of hazing to become member of gang, see N.D.C.C. § 12.1-20-04.

12.1-17-11. Contact by bodily fluids or excrement.

  1. An individual is guilty of an offense if the individual causes blood, emesis, excrement, mucus, saliva, semen, vaginal fluid, or urine to come in contact with:
    1. A law enforcement officer acting in the scope of employment;
    2. An employee of a correctional facility or the department of corrections and rehabilitation acting in the scope of employment unless the employee does an act within the scope of employment which requires or causes the contact;
    3. An individual lawfully present in a correctional facility who is not an inmate;
    4. An individual lawfully present in the penitentiary or an affiliated facility of the penitentiary who is not an inmate;
    5. An individual transporting an individual who is lawfully detained;
    6. A health care facility employee or contractor acting within the scope of employment unless the employee or contractor is performing an act within the scope of employment which requires or causes the contact; or
    7. An emergency responder, including a licensed medical services provider, law enforcement officer, firefighter, volunteer firefighter, officer of a nonprofit volunteer fire department, emergency medical technician, emergency nurse, ambulance operator, or a provider of civil defense services, who while acting in the scope of employment is present at a health care facility.
  2. Subsection 1 does not apply to a mentally ill person as defined in section 25-03.1-02 who has been detained pursuant to chapter 25-03.1.
  3. The offense is a class C felony if the individual knowingly causes the contact and is a class A misdemeanor if the individual recklessly causes the contact.
  4. As used in this section, “health care facility” means an office or institution providing health care services or treatment of diseases, whether physical, mental, or emotional, or other medical, physiological, or psychological conditions, including a hospital; clinic; ambulatory surgery center; outpatient care facility; weight control clinic; nursing home; basic care or assisted living facility; laboratory; or office of any medical professional licensed or registered under title 43 or any individual who is included within a specialty and subspecialty of those fields. The term includes a waiting room, hallway, private room, semiprivate room, ward, and any mobile or temporary facility.

Source: S.L. 1999, ch. 125, § 1; 2017, ch. 99, § 1, 2, effective August 1, 2017.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Notes to Decisions

Elements of Offense.

Where court denied defendant’s request for an amendment of the information, but included the appropriate statutory language in its instruction on the essential elements of contact by bodily fluids, any error in the failure to allege in the information language from N.D.C.C. § 12.1-17-11 that “unless the employee does an act within the scope of employment which requires or causes the contact,” was harmless because in opening statements to the jury, defense counsel said that any contact “was at the direct requirement and at the direct request of an employee, and it was the employee’s demands while performing his duties that caused any of this alleged contact.” Based on proper jury instructions that included all of the essential elements of contact by bodily fluids, a unanimous jury found defendant guilty. State v. Bertram, 2006 ND 10, 708 N.W.2d 913, 2006 N.D. LEXIS 6 (N.D. 2006).

Evidence Sufficient.

Evidence was sufficient to sustain the defendant’s conviction for knowingly causing contact by bodily fluids where he urinated on a deputy’s leg, he was very close to the deputy, and the defendant was laughing. State v. Weaver, 2002 ND 4, 638 N.W.2d 30, 2002 N.D. LEXIS 8 (N.D. 2002).

Law Reviews.

North Dakota Supreme Court Review (State v. Bertram), 82 N.D. L. Rev. 1033 (2006).

12.1-17-12. Assault or homicide while fleeing peace officer.

A person is guilty of a class A felony if that person negligently causes the death of another or a class B felony if that person negligently causes serious bodily injury to another while in violation of section 39-10-71.

Source: S.L. 1999, ch. 126, § 1.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

12.1-17-13. Mandated treatment of domestic violence offenders.

The sentence for an offense under section 12.1-17-01, 12.1-17-01.1, 12.1-17-01.2, 12.1-17-02, 12.1-17-03, 12.1-17-04, or 12.1-17-05 against an actor’s family or household member, as defined in subsection 4 of section 14-07.1-01, must include an order to complete a domestic violence offender evaluation and treatment program as determined by the court. A court may not order the offender to attend anger management classes or individual counseling unless a domestic violence offender treatment program is not reasonably available to the defendant and the court makes findings for the record explaining why an order to complete a domestic violence offender treatment program would be inappropriate.

Source: S.L. 2003, ch. 105, § 2; 2015, ch. 107, § 1, effective August 1, 2015; 2017, ch. 108, § 4, effective April 21, 2017; 2019, ch. 107, § 5, effective August 1, 2019.

CHAPTER 12.1-17.1 Offenses Against Unborn Children

12.1-17.1-01. Definitions.

As used in this chapter:

  1. “Abortion” means the termination of human pregnancy with an intention other than to produce a live birth or to remove a dead embryo or fetus.
  2. “Person” does not include the pregnant woman.
  3. “Unborn child” means the conceived but not yet born offspring of a human being, which, but for the action of the actor would beyond a reasonable doubt have subsequently been born alive.

Source: S.L. 1987, ch. 166, § 1.

Cross-References.

Abortion Control Act, see N.D.C.C. § ch. 14-02.1.

12.1-17.1-02. Murder of an unborn child.

  1. A person is guilty of murder of an unborn child, a class AA felony, if the person:
    1. Intentionally or knowingly causes the death of an unborn child;
    2. Causes the death of an unborn child under circumstances manifesting extreme indifference to the value of the life of the unborn child or the pregnant woman; or
    3. Acting either alone or with one or more other persons, commits or attempts to commit treason, robbery, burglary, kidnapping, felonious restraint, arson, gross sexual imposition, or escape and, in the course of and in furtherance of such crime or of immediate flight therefrom, the person, or another participant, if any, causes the death of an unborn child; except that in any prosecution under this subsection in which the defendant was not the only participant in the underlying crime, it is an affirmative defense that the defendant:
      1. Did not commit the homicidal act or in any way solicit, command, induce, procure, counsel, or aid the commission thereof;
      2. Was not armed with a firearm, destructive device, dangerous weapon, or other weapon that under the circumstances indicated a readiness to inflict serious bodily injury;
      3. Reasonably believed that no other participant was armed with such a weapon; and
      4. Reasonably believed that no other participant intended to engage in conduct likely to result in death or serious bodily injury.
  2. A person is guilty of murder of an unborn child, a class A felony, if the person causes the death of an unborn child under circumstances which would be class AA murder, except that the person causes the death of the unborn child under the influence of extreme emotional disturbance for which there is reasonable excuse. The reasonableness of the excuse must be determined from the viewpoint of a person in the person’s situation under the circumstances as the person believes them to be. An extreme emotional disturbance is excusable, within the meaning of this subsection only, if it is occasioned by substantial provocation or a serious event or situation for which the offender was not culpably responsible.

Subdivisions a and b are inapplicable in the circumstances covered by subsection 2.

Source: S.L. 1987, ch. 166, § 1.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Collateral References.

Homicide based on killing of unborn child, 64 A.L.R.5th 671.

12.1-17.1-03. Manslaughter of an unborn child.

A person is guilty of manslaughter of an unborn child, a class B felony, if the person recklessly causes the death of an unborn child.

Source: S.L. 1987, ch. 166, § 1.

Cross-References.

Penalty for class B felony, see N.D.C.C. § 12.1-32-01.

12.1-17.1-04. Negligent homicide of an unborn child.

A person is guilty of negligent homicide of an unborn child, a class C felony, if the person negligently causes the death of an unborn child.

Source: S.L. 1987, ch. 166, § 1.

Cross-References.

Penalty for class C felony, see N.D.C.C. § 12.1-32-01.

Collateral References.

Homicide based on killing of unborn child, 64 A.L.R.5th 671.

12.1-17.1-05. Aggravated assault of an unborn child.

A person is guilty of assault of an unborn child, a class C felony, if that person willfully assaults a pregnant woman and inflicts serious bodily injury on an unborn child.

Source: S.L. 1987, ch. 166, § 1.

Cross-References.

Penalty for class C felony, see N.D.C.C. § 12.1-32-01.

12.1-17.1-06. Assault of an unborn child.

A person is guilty of assault of an unborn child, a class A misdemeanor, if the person willfully assaults a pregnant woman and inflicts bodily injury on an unborn child.

Source: S.L. 1987, ch. 166, § 1.

Cross-References.

Penalty for class A misdemeanor, see N.D.C.C. § 12.1-32-01.

12.1-17.1-07. Exception.

This chapter does not apply to acts or omissions that cause the death or injury of an unborn child if those acts or omissions are committed during an abortion performed by or under the supervision of a licensed physician to which the pregnant woman has consented, nor does it apply to acts or omissions that are committed pursuant to usual and customary standards of medical practice during diagnostic or therapeutic treatment performed by or under the supervision of a licensed physician.

Source: S.L. 1987, ch. 166, § 1.

Cross-References.

Regulation of abortion, see N.D.C.C. chs. 14-02.1, 14-02.3, and 14-02.6.

12.1-17.1-08. Other convictions not prohibited.

A prosecution for or conviction under this chapter is not a bar to conviction of or punishment for any other offense committed by a person as part of the same conduct.

Source: S.L. 1987, ch. 166, § 1.

CHAPTER 12.1-18 Kidnapping

12.1-18-01. Kidnapping.

  1. A person is guilty of kidnapping if he abducts another or, having abducted another, continues to restrain him with intent to do the following:
    1. Hold him for ransom or reward;
    2. Use him as a shield or hostage;
    3. Hold him in a condition of involuntary servitude;
    4. Terrorize him or a third person;
    5. Commit a felony or attempt to commit a felony; or
    6. Interfere with the performance of any governmental or political function.
  2. Kidnapping is a class A felony unless the actor voluntarily releases the victim alive and in a safe place prior to trial, in which case it is a class B felony.

Source: S.L. 1973, ch. 116, § 18.

Cross-References.

Child custody decree, removal of child from state in violation as felony, see N.D.C.C. § 12.1-18-05.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Prosecution for bringing kidnap victim into this state, see N.D.C.C. § 29-03-01.1.

Sentencing of violent offenders, see N.D.C.C. § 12.1-32-09.1.

Venue, see N.D.C.C. § 29-03-09.

Notes to Decisions

Constitutionality.

This chapter is not unconstitutionally vague. State v. Motsko, 261 N.W.2d 860, 1977 N.D. LEXIS 181 (N.D. 1977).

Elements.

Comparison of the statutory elements does not support a finding that a child abuse offense is similar to a kidnapping offense since the child abuse statute requires that a defendant inflict harm on the victim and cause some form of injury and also requires that the victim be a child; the kidnapping statute requires none of these elements but requires an abduction and an interference with a governmental or political function, and the child abuse statute requires neither of these. State v. Hoehn, 2019 ND 222, 932 N.W.2d 553, 2019 N.D. LEXIS 225 (N.D. 2019).

Evidence.

Jury was presented sufficient evidence on which it could have found defendant guilty of kidnapping, where testimony revealed defendant restrained the victim with a string from a sweatshirt, placed the victim in a car, tied him into the car, threatened him, negotiated his release, and restrained him while driving him around a city for two hours. State v. Lehman, 2010 ND 134, 785 N.W.2d 204, 2010 N.D. LEXIS 136 (N.D. 2010).

Included Offenses.

Aggravated assault is not an included offense of kidnapping. State v. Motsko, 261 N.W.2d 860, 1977 N.D. LEXIS 181 (N.D. 1977).

Sentence.

Because the dangerous special offender status did not apply to defendant, he was subject only to the maximum penalty for conspiracy to commit kidnapping, a class A felony with a maximum of twenty years’ imprisonment and a $ 20,000 fine. State v. Hoehn, 2019 ND 222, 932 N.W.2d 553, 2019 N.D. LEXIS 225 (N.D. 2019).

District court abused its discretion by misapplying or misinterpreting the law when it sentenced defendant for conspiracy to commit kidnapping as a dangerous special offender because his previous child abuse offense was not a similar offense in terms of its elements or its underlying conduct; in the child abuse offense, defendant injured his infant son, but his conduct in the conspiracy to commit kidnapping offense did not cause physical injury to the victim’s baby. State v. Hoehn, 2019 ND 222, 932 N.W.2d 553, 2019 N.D. LEXIS 225 (N.D. 2019).

DECISIONS UNDER PRIOR LAW

Essential Elements.

Essential elements of kidnapping were that a person willfully kidnapped another, with intent to cause him unlawfully to be detained against his will. State v. Taylor, 70 N.D. 201, 293 N.W. 219, 1940 N.D. LEXIS 161 (N.D. 1940).

Collateral References.

Validity and construction of Federal Bank Robbery Act, 59 A.L.R.2d 946.

Fraud or false pretenses, kidnapping by, 95 A.L.R.2d 450.

What is “harm” within provisions of statutes increasing penalty for kidnapping where victim suffers harm, 11 A.L.R.3d 1053.

Prison official, seizure by inmates as kidnapping, 59 A.L.R.3d 1306.

False imprisonment as included offense with charge of kidnapping, 68 A.L.R.3d 828.

Validity, construction, and application of Uniform Child Custody Jurisdiction Act, 20 A.L.R.5th 700; 21 A.L.R.5th 396, 40 A.L.R.5th 227.

Necessity and sufficiency of showing, in kidnapping prosecution, that detention was with intent to “secretly” confine victim, 98 A.L.R.3d 733.

Kidnapping or related offense by taking or removing of child by or under authority of parent or one in loco parentis, 20 A.L.R.4th 823.

Liability of legal or natural parent, or one who aids and abets, for damages resulting from abduction of own child, 49 A.L.R.4th 7.

Coercion, compulsion, or duress as defense to charge of kidnapping, 69 A.L.R.4th 1005.

What types of proceedings or determinations are governed by the Uniform Child Custody Jurisdiction Act (UCCJA) or the Parental Kidnapping Prevention Act (PKPA),Uniform Child Custody Jurisdiction Act (UCCJA) or the Parental Kidnapping Prevention Act (PKPA), 78 A.L.R.4th 1028.

Significant connection jurisdiction of court under § 3(a)(2) of the Uniform Child Custody Jurisdiction Act (UCCJA) and the Parental Kidnapping Prevention Act (PKPA), 5 A.L.R.5th 550.

Abandonment and emergency jurisdiction of court under § 3(a)(3) of the Uniform Child Custody Jurisdiction Act (UCCJA) and the Parental Kidnapping Prevention Act (PKPA), 5 A.L.R.5th 788.

Home state jurisdiction of court under § 3(a)(1) of the Uniform Child Custody Jurisdiction Act (UCCJA) or the Parental Kidnapping Prevention Act (PKPA), 6 A.L.R.5th 1.

Default jurisdiction of court under § 3(a)(4) of the Uniform Child Custody Jurisdiction Act (UCCJA) or the Parental Kidnapping Prevention Act (PKPA), 6 A.L.R.5th 69.

Parties’ misconduct as ground for declining jurisdiction under sec. 8 of the Uniform Child Custody Jurisdiction Act (UCCJA), 16 A.L.R.5th 650.

Pending proceeding in another state as ground for declining jurisdiction under § 6(a) of the Uniform Child Custody Jurisdiction Act (UCCJA) or the Parental Kidnapping Prevention Act (PKPA), 20 A.L.R.5th 700.

Inconvenience of forum as ground for declining jurisdiction under § 7 of the Uniform Child Custody Jurisdiction Act (UCCJA), 21 A.L.R.5th 396, 40 A.L.R.5th 227.

Seizure or detention for purpose of committing rape, robbery, or other offense as constituting separate crime of kidnapping, 39 A.L.R.5th 283.

Recognition and enforcement of out-of-state custody decree under § 13 of the Uniform Child Custody Jurisdiction Act (UCCJA) or the Parental Kidnapping Prevention Act (PKPA), 28 USCS § 1738A(A), 40 A.L.R.5th 227.

Home state jurisdiction of court to modify foreign child custody decree under §§ 3(a)(1) and 14(a)(2) of Uniform Child Custody Jurisdiction Act (UCCJA) and Parental Kidnapping Prevention Act (PKPA), 28 U.S.C.A. §§ 1738A(c)(2)(A) and 1738A(f)(1), 72 A.L.R.5th 249.

Declining jurisdiction to modify prior child custody decree under § 14(a)(1) of Uniform Child Custody Jurisdiction Act (UCCJA) and Parental Kidnapping Prevention Act (PKPA), 28 U.S.C.A. § 1738A(f)(2), 73 A.L.R.5th 185.

12.1-18-02. Felonious restraint.

A person is guilty of a class C felony, if he:

  1. Knowingly abducts another;
  2. Knowingly restrains another under terrorizing circumstances or under circumstances exposing him to risk of serious bodily injury; or
  3. Restrains another with intent to hold him in a condition of involuntary servitude.

Source: S.L. 1973, ch. 116, § 18.

Cross-References.

Penalty for class C felony, see N.D.C.C. § 12.1-32-01.

Prosecution when victim brought into this state, see N.D.C.C. § 29-03-01.1.

Notes to Decisions

Evidence Insufficient.

Evidence showing defendant approached four-year-old in bus depot restroom, asked where her mommy was, grabbed her by the hand and said “Well, I’m your mommy now” and “Come on, let’s go” reveals no competent evidence of words or acts from which the jury could reasonably infer that defendant was guilty of threats of violence or acts dangerous to human life intended to induce fear. Thus, conviction for attempted felonious restraint under terrorizing circumstances could not stand. State v. Plentychief, 464 N.W.2d 373, 1990 N.D. LEXIS 252 (N.D. 1990).

Evidence Sufficient.

Defendant’s conviction of felonious restraint for knowingly restraining another under terrorizing circumstances under N.D.C.C. § 12.1-18-02(2) was supported by sufficient evidence where defendant grabbed his wife against her will, threw her over his shoulder, and returned to their home while she shouted to neighbors to call the police and defendant threatened that she would be sorry if the police appeared. While defendant contended that his statement was too ambiguous to constitute a threat, the court held that a threat did not have to be precise. State v. Alvarado, 2008 ND 203, 757 N.W.2d 570, 2008 N.D. LEXIS 225 (N.D. 2008).

Jury Instructions.

Instruction by the trial court was misleading, as it departed from the statutory definition and clouded the essential elements of threats of violence or dangerous acts made with an intent to induce fear. State v. Plentychief, 464 N.W.2d 373, 1990 N.D. LEXIS 252 (N.D. 1990).

12.1-18-03. Unlawful imprisonment.

  1. A person is guilty of a class A misdemeanor if he knowingly subjects another to unlawful restraint.
  2. It is a defense to a prosecution under this section that the actor is a parent or person in equivalent relation to the person restrained and that the person restrained is a minor.

Source: S.L. 1973, ch. 116, § 18.

Cross-References.

Penalty for class A misdemeanor, see N.D.C.C. § 12.1-32-01.

Notes to Decisions

Parental Equivalent.

A person in equivalent relation may be a foster parent or a relative who is acting in loco parentis to the minor. State v. Schlotman, 1998 ND 39, 575 N.W.2d 208, 1998 N.D. LEXIS 29 (N.D. 1998).

Grandparents who were not acting as substitute parents for the children and who had no other legal or factual basis for claiming the right to custody of the children were not entitled to the defense from prosecution as parental equivalents under subsection (2). State v. Schlotman, 1998 ND 39, 575 N.W.2d 208, 1998 N.D. LEXIS 29 (N.D. 1998).

12.1-18-04. Definitions.

In this chapter:

  1. “Abduct” means to restrain a person with intent to prevent his liberation by:
    1. Secreting or holding him in a place where he is not likely to be found; or
    2. Endangering or threatening to endanger the safety of any human being.
  2. “Restrain” means to restrict the movement of a person unlawfully and without consent so as to interfere substantially with his liberty by removing him from his place of residence or business, by moving him a substantial distance from one place to another, or by confining him for a substantial period. Restraint is “without consent” if it is accomplished by: a. force, intimidation, or deception; or b. any means, including acquiescence of the victim, if he is a child less than fourteen years old or an incompetent person, and if the parent, guardian, or person or institution responsible for the general supervision of his welfare has not acquiesced in the movement or confinement.

Source: S.L. 1973, ch. 116, § 18.

Notes to Decisions

“Substantial”.

The terms “substantial” and “substantially” are not unconstitutionally vague as they mean “significant”, “important”, or “real”, as distinguished, from “insignificant”, “trivial”, “nominal”, or “imaginary”. State v. Motsko, 261 N.W.2d 860, 1977 N.D. LEXIS 181 (N.D. 1977).

12.1-18-05. Removal of child from state in violation of custody decree — Penalty.

Any person who intentionally removes, causes the removal of, or detains the person’s own child under the age of eighteen years outside this state with the intent to deny another person’s rights in violation of an existing custody decree is guilty of a class C felony. Detaining the child outside this state in violation of the custody decree for more than seventy-two hours is prima facie evidence that the person charged intended to violate the custody decree at the time of removal.

Source: S.L. 2001, ch. 149, § 1.

Cross-References.

Custody decrees, award of primary residential responsibility, see N.D.C.C. § 14-05-22.

Uniform Child Custody Jurisdiction & Enforcement Act, see N.D.C.C. ch. 14-14.1.

CHAPTER 12.1-19 Abortion [Repealed]

[Repealed by S.L. 1975, ch. 124, § 2]

Note.

For present provisions, see N.D.C.C. ch. 14-02.1.

CHAPTER 12.1-20 Sex Offenses

12.1-20-01. General provisions.

In sections 12.1-20-03 through 12.1-20-08:

  1. When the criminality of conduct depends on a child’s being below the age of fifteen, it is no defense that the actor did not know the child’s age, or reasonably believed the child to be older than fourteen.
  2. When criminality depends on the victim being a minor, it is an affirmative defense that the actor reasonably believed the victim to be an adult.
  3. When criminality depends on the victim being a minor fifteen years of age or older, the actor is guilty of an offense only if the actor is at least three years older than the minor.

Source: S.L. 1973, ch. 117, § 1; 1983, ch. 172, § 6; 1985, ch. 536, § 1; 1987, ch. 167, § 1; 2005, ch. 115, § 1; 2007, ch. 123, § 1.

Notes to Decisions

Affirmative Defense.

The legislature did not explicitly designate the three-year age difference requirement under N.D.C.C. § 12.1-20-01(3) as an affirmative defense. State v. Boespflug, 2011 ND 30, 793 N.W.2d 774, 2011 N.D. LEXIS 25 (N.D. 2011).

In a statutory rape prosecution, the culpability requirement of “willfully” did not apply to the element of the victim's age, under N.D.C.C. § 12.1-02-02(3)(a), because the crime was a strict liability crime, since lack of knowledge or mistake as to the victim's age was not a defense, under N.D.C.C. § 12.1-20-01(1). State v. Vandermeer, 2014 ND 46, 843 N.W.2d 686, 2014 N.D. LEXIS 43 (N.D. 2014).

Denying defendant a mistake of age defense to statutory rape did not violate due process because sexual intercourse involved conscious activity giving rise to circumstances placing a reasonable person on notice of potential illegality. State v. Vandermeer, 2014 ND 46, 843 N.W.2d 686, 2014 N.D. LEXIS 43 (N.D. 2014).

Reasonable Belief.

In a case in which a jury found defendant guilty of corruption or solicitation of a minor, defendant did not dispute the actual three-year age difference between him and the minor. Therefore, the reasonableness of defendant’s belief that there was less than a three-year age difference between him and the minor was not a defense. State v. Boespflug, 2011 ND 30, 793 N.W.2d 774, 2011 N.D. LEXIS 25 (N.D. 2011).

DECISIONS UNDER PRIOR LAW

Burden of Proof.

Former subsection 3 of this section was a statute of limitations, and the state had to prove compliance with the statute by a preponderance of the evidence. State v. Ford, 377 N.W.2d 125, 1985 N.D. LEXIS 431 (N.D. 1985).

By its plain language, former subsection 3 was a statute of limitation. The state therefore had the burden to affirmatively prove that the charge was brought within the limitation period, or that the limitation period did not apply. State v. Tibor, 373 N.W.2d 877, 1985 N.D. LEXIS 390 (N.D. 1985).

Effective Assistance of Counsel.

While former subsection 3 placed a three month limitation for the initiation of the criminal prosecution of a singular incident, it did not apply where the prosecution alleged that sexual abuse occurred only weeks before the police investigation and the defendant’s subsequent arrest; therefore, failure of the trial attorney to move for dismissal of the criminal proceedings pursuant to former subsection 3 did not deprive the defendant of effective assistance of counsel. State v. Gutsche, 405 N.W.2d 295, 1987 N.D. LEXIS 308 (N.D. 1987).

Specifically Interested in Victim.

The phrase “persons specifically interested in the victim”, as used in former subsection 4 prior to the 1985 amendment of this section, means a person interested in the child’s welfare who, by virtue of his or her relationship with the child and the confidence thereby enjoyed, is more likely than others to learn of the alleged crime. Proof of such an amorphous standard depends necessarily on the facts and circumstances of each particular case. The nature of the relationship, the manner of learning of the offense, and the reasons for reporting it or not, are some of the facts to be established. A relative may qualify as may others. State v. Tibor, 373 N.W.2d 877, 1985 N.D. LEXIS 390 (N.D. 1985).

By its exclusive reliance on the insufficient legal argument that the sister of the accused, who reported the offense, could not be specifically interested in the alleged victim, the state failed to meet its burden of proving either compliance with the three-month reporting requirement or an exception to it. State v. Tibor, 373 N.W.2d 877, 1985 N.D. LEXIS 390 (N.D. 1985) (decided prior to the 1985 amendment to this section).

Submission to Jury.

Where there was conflicting evidence as to when twelve-year old victim’s mother learned of the incident in which defendant father engaged in a sexual act with victim, the court’s submission of that issue to the jury was proper. State v. Ford, 377 N.W.2d 125, 1985 N.D. LEXIS 431 (N.D. 1985) (decided under this section as it read prior to the 1985 amendment).

Collateral References.

Liability of parent or person in loco parentis for rape of minor child, 19 A.L.R.2d 423.

Age: applicability of rape statute covering children of a specified age, with respect to a child who has passed the anniversary date of such age, 73 A.L.R.2d 874.

Marriage: statutory rape of female who is or has been married, 32 A.L.R.3d 1030.

Burden of proof of defendant’s age, in prosecution where attainment of particular age is statutory requisite of guilt, 49 A.L.R.3d 526.

Liability of parent for injury in unemancipated child caused by parent’s negligence — modern cases, 6 A.L.R.4th 1066.

Criminal responsibility of husband for rape, or assault to commit rape, on wife, 24 A.L.R.4th 105.

Prosecution of female as principal for rape, 67 A.L.R.4th 1127.

Mistake or lack of information as to victim’s age as defense to statutory rape, 46 A.L.R.5th 499.

Law Reviews.

Summary of significant decisions rendered by the North Dakota Supreme Court in 1990 relating to rape, 66 N.D. L. Rev. 753 (1990).

12.1-20-02. Definitions.

In sections 12.1-20-03 through 12.1-20-12:

  1. “Coercion” means to exploit fear or anxiety through intimidation, compulsion, domination, or control with the intent to compel conduct or compliance.
  2. “Deviate sexual act” means any form of sexual contact with an animal, bird, or dead person.
  3. “Object” means anything used in commission of a sexual act other than the person of the actor.
  4. “Sexual act” means sexual contact between human beings consisting of contact between the penis and the vulva, the penis and the anus, the mouth and the penis, the mouth and the vulva, or any other portion of the human body and the penis, anus, or vulva; or the use of an object which comes in contact with the victim’s anus, vulva, or penis. For the purposes of this subsection, sexual contact between the penis and the vulva, the penis and the anus, any other portion of the human body and the anus or vulva, or an object and the anus, vulva, or penis of the victim, occurs upon penetration, however slight. Emission is not required.
  5. “Sexual contact” means any touching, whether or not through the clothing or other covering, of the sexual or other intimate parts of the person, or the penile ejaculation or ejaculate or emission of urine or feces upon any part of the person, for the purpose of arousing or satisfying sexual or aggressive desires.

Source: S.L. 1973, ch. 117, § 1; 1977, ch. 122, § 1; 1983, ch. 172, § 7; 1985, ch. 176, § 1; 1997, ch. 122, § 1; 2001, ch. 134, § 1; 2009, ch. 131, § 1.

Notes to Decisions

Evidence of Penetration.

Evidence was sufficient to establish that defendant’s penis had penetrated victim’s anus where victim testified that defendant had penetrated his rectum and a doctor, although unable to speak unequivocably as to penetration, testified that victim’s condition was consistent with that type of trauma. State v. Sadler, 305 N.W.2d 913, 1981 N.D. LEXIS 319 (N.D. 1981).

Lesser Included Offenses.

Section 12.1-20-03(2)(a) which prohibits “sexual contact” is a lesser included offense of N.D.C.C. § 12.1-20-03(1)(d) which prohibits a “sexual act”. State v. Vance, 537 N.W.2d 545, 1995 N.D. LEXIS 171 (N.D. 1995).

Sexual Act.
—Double Jeopardy.

Where defendant was convicted of two counts of gross sexual imposition, because each conviction arose from evidence of a different sexual act, i.e., oral and vaginal sex, his convictions rested on two separate sexual acts and his double jeopardy argument was meritless. State v. Sievers, 543 N.W.2d 491, 1996 N.D. LEXIS 46 (N.D. 1996).

Sexual Contact.

It may be inferred from details of incident that touching was done for purpose of arousing or gratifying sexual desire. State v. Jenkins, 326 N.W.2d 67, 1982 N.D. LEXIS 331 (N.D. 1982).

The statute does not require an erection; it only requires sexual contact between the penis and the vulva by penetration, however slight. State v. Drader, 374 N.W.2d 601, 1985 N.D. LEXIS 405 (N.D. 1985).

The tongue is part of the mouth for purposes of subsection (3) (now (4)) of this section. State v. Johnson, 379 N.W.2d 291, 1986 N.D. LEXIS 241 (N.D.), cert. denied, 475 U.S. 1141, 106 S. Ct. 1792, 90 L. Ed. 2d 337, 1986 U.S. LEXIS 2064 (U.S. 1986).

Sexual contact occurs even though clothing is interposed between the sexual or other intimate part and the offender. State v. Brown, 420 N.W.2d 5, 1988 N.D. LEXIS 70 (N.D. 1988).

A crime may be committed by “any touching of the sexual or other intimate parts of the person for the purpose of arousing or satisfying sexual or aggressive desires.” Penetration is not a required element of a sexual offense as made clear in subsection (4). State v. Skaro, 474 N.W.2d 711, 1991 N.D. LEXIS 157 (N.D. 1991).

Evidence was sufficient to support defendant’s convictions of gross sexual imposition and abuse or neglect of a child because the son testified that he and defendant had sex after defendant got out of the shower, the daughter testified that defendant was present when her father had sex with her, and a third child testified that defendant had sex with the son. The jury also heard testimony from a detective, a physician who examined the daughter, and an employee of county social services. State v. Muhle, 2007 ND 131, 737 N.W.2d 636, 2007 N.D. LEXIS 135 (N.D. 2007).

Defendant’s conviction for gross sexual imposition was appropriate pursuant to N.D.C.C. §§ 12.1-20.03 and 12.1-20-02(4) because there was sufficient evidence to support defendant’s conviction where the victim’s mother testified that she observed defendant rubbing the child and the child also testified that defendant touched her sexually. State v. Wegley, 2008 ND 4, 744 N.W.2d 284, 2008 N.D. LEXIS 7 (N.D. 2008).

Evidence was sufficient to support defendant’s conviction of class AA felony gross sexual imposition under N.D.C.C. § 12.1-20-03(1)(d), (3)(a), given that the victim testified that defendant made her “go like this” to his genitals, which testimony was sufficient to establish sexual contact, for purposes of N.D.C.C. § 12.1-20-02(3) (now (4)); furthermore, although defendant argued that the evidence was insufficient because it rested on the victim’s testimony, the uncorroborated testimony of a child was sufficient to sustain a conviction of a sexual offense. State v. Paul, 2009 ND 120, 769 N.W.2d 416, 2009 N.D. LEXIS 135 (N.D. 2009).

Evidence was sufficient to convict defendant of gross sexual imposition with a child less than six years of age under N.D.C.C. § 12.1-20-03(1)(d) because the child testified that defendant put his hands and his sexual organ in the child’s privates, he made her lick his sexual organ, and the uncorroborated testimony of the child was sufficient to sustain a conviction for gross sexual imposition; the jury saw a videotaped interview of the child by a forensic interviewer in which the child detailed several acts of sexual contact by defendant; and the jury heard a recording of the incriminating statements made by defendant at his house in which he admitted that he had engaged in oral sex with the child. State v. Huether, 2010 ND 233, 790 N.W.2d 901, 2010 N.D. LEXIS 236 (N.D. 2010).

Evidence was sufficient to support defendant’s conviction of continuous sexual abuse of a child in violation of N.D.C.C. § 12.1-20-03.1 because: (1) the child victim testified that defendant forced her to place her hands on his penis over his clothing and forced her to move her hand over his penis; (2) defendant was in a relationship with the victim’s mother and periodically lived with them between May 2008 and January 2009; and (3) the victim testified the sexual contacts occurred almost daily when defendant lived with them, including the day he was arrested for the offense. State v. Gomez, 2011 ND 29, 793 N.W.2d 451, 2011 N.D. LEXIS 35 (N.D. 2011).

Plain language of N.D.C.C. § 12.1-20-02(5) states sexual contact is any touching of the sexual or other intimate parts of the person for the purpose of arousing or satisfying sexual or aggressive desires; the word “person” is not specifically defined in the statute; therefore, the plain, ordinary, and commonly understood meaning applies. The statute does not limit the definition of sexual contact to the touching of the child’s sexual or other intimate parts; rather, the plain language of the statute includes any touching of the sexual or intimate parts of the person by the child. State v. Gomez, 2011 ND 29, 793 N.W.2d 451, 2011 N.D. LEXIS 35 (N.D. 2011).

Touch.

The words in our statutes are to be understood in their ordinary sense. The word “touch” is defined to mean “perceive by the sense of feeling.” State v. Brown, 420 N.W.2d 5, 1988 N.D. LEXIS 70 (N.D. 1988).

DECISIONS UNDER PRIOR LAW

Accomplice.

Question whether in a sodomy offense with two or more participants, one of them was an accomplice, was a question of fact to be determined by the jury. State v. Powell, 73 N.W.2d 777, 1955 N.D. LEXIS 157 (N.D. 1955).

Attempt.

One convicted of attempted sodomy could be sentenced to five years in the penitentiary. King, 9 N.D. 149, 82 N.W. 423, 1900 N.D. LEXIS 207 (N.D. 1900).

Definition.

Crime of sodomy as defined by former section was much broader than the common-law offense and included carnal knowledge by or with the mouth. State v. Nelson, 36 N.D. 564, 163 N.W. 278, 1917 N.D. LEXIS 211 (N.D. 1917).

Collateral References.

Imputation of criminal, abnormal, or otherwise offensive sexual attitude or behavior as defamation — Post-New York Times cases, 57 A.L.R.4th 404.

Admissibility, in prosecution for sex-related offense, of results of tests on semen or seminal fluids, 75 A.L.R.4th 897.

Fact that murder-rape victim was dead at time of penetration as affecting conviction for rape, 76 A.L.R.4th 1147.

Validity, Construction, and Application of State Statute Including “Sexually Motivated Offenses” Within Definition of Sex Offense for Purposes of Sentencing or Classification of Defendant as Sex Offender, 30 A.L.R.6th 373.

Law Reviews.

North Dakota Supreme Court Review (State v. Paul), see 86 N.D. L. Rev. 437 (2010).

12.1-20-03. Gross sexual imposition — Penalty.

  1. A person who engages in a sexual act with another, or who causes another to engage in a sexual act, is guilty of an offense if:
    1. That person compels the victim to submit by force or by threat of imminent death, serious bodily injury, or kidnapping, to be inflicted on any human being;
    2. That person or someone with that person’s knowledge has substantially impaired the victim’s power to appraise or control the victim’s conduct by administering or employing without the victim’s knowledge intoxicants, a controlled substance as defined in chapter 19-03.1, or other means with intent to prevent resistance;
    3. That person knows or has reasonable cause to believe that the victim is unaware that a sexual act is being committed upon him or her;
    4. The victim is less than fifteen years old; or
    5. That person knows or has reasonable cause to believe that the other person suffers from a mental disease or defect which renders him or her incapable of understanding the nature of his or her conduct.
  2. A person who engages in sexual contact with another, or who causes another to engage in sexual contact, is guilty of an offense if:
    1. The victim is less than fifteen years old;
    2. That person compels the victim to submit by force or by threat of imminent death, serious bodily injury, or kidnapping, to be inflicted on any human being; or
    3. That person knows or has reasonable cause to believe that the victim is unaware that sexual contact is being committed on the victim.
    1. An offense under this section is a class AA felony if in the course of the offense the actor inflicts serious bodily injury upon the victim, if the actor’s conduct violates subdivision a of subsection 1, or if the actor’s conduct violates subdivision d of subsection 1 and the actor was at least twenty-two years of age at the time of the offense. For any conviction of a class AA felony under subdivision a of subsection 1, the court shall impose a minimum sentence of twenty years’ imprisonment, with probation supervision to follow the incarceration. The court may deviate from the mandatory sentence if the court finds that the sentence would impose a manifest injustice and the defendant has accepted responsibility for the crime or cooperated with law enforcement. However, a defendant convicted of a class AA felony under this section may not be sentenced to serve less than five years of incarceration.
    2. Otherwise the offense is a class A felony.
  3. If, as a result of injuries sustained during the course of an offense under this section, the victim dies, the offense is a class AA felony, for which the maximum penalty of life imprisonment without parole must be imposed unless the defendant was a juvenile at the time of the offense.

Source: S.L. 1973, ch. 117, § 1; 1977, ch. 122, § 2; 1987, ch. 168, § 1; 1997, ch. 123, § 1; 2005, ch. 115, § 2; 2007, ch. 123, § 2; 2009, ch. 131, § 2; 2015, ch. 116, § 2, effective August 1, 2015; 2017, ch. 109, § 1, effective August 1, 2017.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Prohibition against deferred imposition of sentence for certain offenders, exception, see N.D.C.C. § 12.1-32-04.1.

Removal of offender from child’s residence as condition for child’s release from shelter care, see N.D.C.C. § 27-20-17.

Sentencing of violent offenders, see N.D.C.C. § 12.1-32-09.1.

Sexual offender registration requirement, see N.D.C.C. § 12.1-32-15.

Notes to Decisions

Constitutionality.

Defendant charged with gross sexual imposition had no standing to challenge the section as being unconstitutionally vague and overbroad, where he did not show that the statute was impermissibly vague or overbroad as applied to him. State v. Tibor, 373 N.W.2d 877, 1985 N.D. LEXIS 390 (N.D. 1985).

Age of Victim.

Subdivision (2)(a) of this section makes it a crime to have sexual contact with a person who is under 15 years old. State v. Thill, 473 N.W.2d 451, 1991 N.D. LEXIS 137 (N.D. 1991).

The trial court did not abuse its discretion by not considering the victim’s age when sentencing defendant on the theory that the seriousness of gross sexual imposition diminishes as the victim’s age approaches 15; this section makes no distinction in punishment when the victim is less than 15 years old. State v. Halton, 535 N.W.2d 734, 1995 N.D. LEXIS 134 (N.D. 1995).

Cross-Examination of Victim.

Trial court’s refusal to allow any inquiry on cross-examination of victim of gross sexual imposition as to the victim’s history of treatment for a mental condition did not constitute an abuse of discretion and did not deny defendant his constitutional right to confrontation where the record did not establish the relevancy of such inquiry; psychiatric treatment of the victim two years before the incident, without more, did not establish a sufficient basis to make questions concerning that treatment relevant. State v. Buckley, 325 N.W.2d 169, 1982 N.D. LEXIS 336 (N.D. 1982).

Defendant, on trial for gross sexual imposition, was prohibited by N.D.R.Ev. 510 from cross-examining the complainant on her refusal to release her counseling records. State v. Lange, 497 N.W.2d 83, 1993 N.D. LEXIS 24 (N.D. 1993).

Ordinarily, in a trial for gross sexual imposition when a prosecutor has introduced medical evidence of a youthful complainant’s physical condition, the defendant should be allowed to cross-examine the complainant about her prior sexual activity in order to show that another person might have been responsible for her condition. State v. Osier, 1999 ND 28, 590 N.W.2d 205, 1999 N.D. LEXIS 30 (N.D. 1999).

Where defendant charged with gross sexual imposition was permitted to introduce evidence about the thirteen year old complainant’s sexual activity with her boyfriend through her boyfriend’s testimony, the trial court did not abuse its discretion in excluding additional cumulative evidence concerning her sexual activity through cross-examination of the complainant herself. State v. Osier, 1999 ND 28, 590 N.W.2d 205, 1999 N.D. LEXIS 30 (N.D. 1999).

Culpability.

In a statutory rape prosecution, the culpability requirement of “willfully” did not apply to the element of the victim's age, under N.D.C.C. § 12.1-02-02(3)(a), because the crime was a strict liability crime, since lack of knowledge or mistake as to the victim's age was not a defense, under N.D.C.C. § 12.1-20-01(1). State v. Vandermeer, 2014 ND 46, 843 N.W.2d 686, 2014 N.D. LEXIS 43 (N.D. 2014).

Crime of gross sexual imposition as defined in this section does not require any specific culpability; therefore, culpability required is “willfully”. State v. Cummins, 347 N.W.2d 571, 1984 N.D. LEXIS 293 (N.D. 1984).

Elements.

To justify a conviction of gross sexual imposition, the state must establish beyond a reasonable doubt the defendant’s sexual contact with a child less than fifteen years old. State v. Schill, 406 N.W.2d 660, 1987 N.D. LEXIS 335 (N.D. 1987).

In a prosecution for gross sexual imposition, defendant’s knowledge of the victim’s unawareness was an essential element of the offense charged and could not be inferred; because it was missing from the information, the criminal information was defective and the charge was properly dismissed. State v. Frankfurth, 2005 ND 167, 704 N.W.2d 564, 2005 N.D. LEXIS 200 (N.D. 2005), limited, State v. Bertram, 2006 ND 10, 708 N.W.2d 913, 2006 N.D. LEXIS 6 (N.D. 2006).

Age-in-relation-to-the-victim provision in N.D.C.C. § 12.1-20-03 is an essential element added by the legislature in 2005, but it was not an element in December 2004 when defendant committed the offense of gross sexual imposition and, thus, defendant was properly charged with gross sexual imposition based on the law in effect when the crime occurred where he engaged in a sexual act with a woman who was under 15 years old. State v. Flatt, 2007 ND 98, 733 N.W.2d 608, 2007 N.D. LEXIS 97 (N.D. 2007).

North Dakota adopts the intermediate construction of the phrase “incapable of understanding the nature of his or her conduct,” the construction adopted by the majority of jurisdictions. Under that construction, mental incapacity that renders one incapable of understanding the nature of his or her conduct means that the person does not know either the physiological aspects of sex or the possible consequences of sexual activity, such as pregnancy and the contraction of sexually transmitted diseases. State v. Mosbrucker, 2008 ND 219, 758 N.W.2d 663, 2008 N.D. LEXIS 210 (N.D. 2008).

Defendant’s guilty plea to gross sexual imposition under N.D.C.C. § 12.1-20-03(1)(c) was supported by a sufficient factual basis where the victim went to a bar where she had too much to drink and passed out in her car and where defendant came upon the victim in her car, entered the car, and forced the victim to have oral sex with him. State v. Blurton, 2009 ND 144, 770 N.W.2d 231, 2009 N.D. LEXIS 146 (N.D.), cert. denied, 558 U.S. 1036, 130 S. Ct. 656, 175 L. Ed. 2d 500, 2009 U.S. LEXIS 8143 (U.S. 2009).

Evidence.
—Admissibility.

Information as to where the alleged assault occurred, description of the assailant, nature of the assault, victim’s behavior after the assault, the assailant’s behavior after the assault, and to whom and when the assault was reported are reasonably pertinent to diagnosis and treatment and admissible under N.D.R.Ev. 803(4). State v. Janda, 397 N.W.2d 59, 1986 N.D. LEXIS 459 (N.D. 1986).

The intensity of psychological trauma suffered by the victim of a sexual assault may vary, depending upon such things as the location of the attack, the kind and degree of restraint of movement or force used, or the imposition of fear through an assailant’s admonition to the victim not to tell anyone. Thus, such matters are “reasonably pertinent to diagnosis and treatment” and statements about them are admissible under N.D.R.Ev. 803(4). State v. Janda, 397 N.W.2d 59, 1986 N.D. LEXIS 459 (N.D. 1986).

Evidence introduced to show preparation defendant undertook before he engaged in gross sexual imposition of minor, for which he was convicted, to gain trust of minor and her parents, were actions in preparation of his criminal activity not prohibited by N.D.R.Ev. 404(b). State v. Christensen, 1997 ND 57, 561 N.W.2d 631, 1997 N.D. LEXIS 53 (N.D. 1997).

The trial court’s admission of evidence that defendant had sexually assaulted a niece eight years prior to alleged acts of intercourse with his daughter constituted reversible error. State v. Osier, 1997 ND 170, 569 N.W.2d 441, 1997 N.D. LEXIS 189 (N.D. 1997).

In gross sexual imposition prosecution the trial court did not abuse its discretion by allowing the introduction of a photograph of the victim at the age of six; the photograph was relevant to show the victim’s age and size as compared to the defendant’s age and size, whether the victim would take seriously a threat of physical harm if he reported the abuse, and to explain why the victim waited two years to report the abuse. State v. Klein, 1999 ND 76, 593 N.W.2d 325, 1999 N.D. LEXIS 81 (N.D. 1999).

A letter and postcard written by the defendant and describing prior and planned sexual assaults against his daughter, to whom they were addressed, had probative value, were not unduly prejudicial and were therefore admissible. State v. Anderson, 2003 ND 30, 657 N.W.2d 245, 2003 N.D. LEXIS 37 (N.D. 2003).

District court had not erroneously denied defendant’s motion to suppress incriminating statements about the sexual abuse of his young niece and nephew because, inter alia, he was informed of his Miranda rights both verbally and in writing prior to the start of the interview, he signed a waiver of rights form at that time and, even if he was in custody during the interview, the police officers complied with the requirements of the Fifth Amendment. State v. Goebel, 2007 ND 4, 725 N.W.2d 578, 2007 N.D. LEXIS 2 (N.D. 2007).

It was no error to bar defendant’s prior sexual contact with a victim because (1) consent was irrelevant to gross sexual imposition of which a victim was unaware, (2) the N.D. R. Evid. 412(b)(1)(B) exception only applied when consent was relevant, and the exceptions in N.D. R. Evid. 412(b)(1)(A) and (C) did not apply. State v. Muhammad, 2019 ND 159, 931 N.W.2d 181, 2019 N.D. LEXIS 166 (N.D. 2019).

—Insufficient.

There was insufficient evidence presented to support a finding that a juvenile committed gross sexual imposition in violation of N.D.C.C. § 12.1-20-03, by having engaged in a “sexual act” with a victim less than 15 years old. The only testimony offered was that of a detective, who testified that the victim had admitted to social services that she had a “sexual relationship” with the juvenile. Russell v. L.B.B. (Interest of L.B.B.), 2005 ND 220, 707 N.W.2d 469, 2005 N.D. LEXIS 264 (N.D. 2005).

—Sufficient.

Testimony of victim and other witnesses was sufficient to support jury’s verdict of guilty for crime of gross sexual imposition; uncorroborated testimony of a rape victim is sufficient to establish all elements of crime. State v. Kringstad, 353 N.W.2d 302, 1984 N.D. LEXIS 344 (N.D. 1984).

Circumstantial evidence was sufficient to support convictions for murder, gross sexual imposition, and burglary where the victim was sexually assaulted and murdered in her home, items of the victim’s property were found in defendant’s possession, DNA evidence and fingerprints implicated defendant, items belonging to defendant were found in the victim’s home, and defendant had injuries that were consistent with the victim’s attempt to defend herself. State v. Charette, 2004 ND 187, 687 N.W.2d 484, 2004 N.D. LEXIS 316 (N.D. 2004).

Evidence was sufficient to convict defendant of gross sexual imposition in violation of N.D.C.C. § 12.1-20-03(1)(d) by having sexual intercourse with a 14-year-old victim; both the victim and the victim’s friend testified that defendant sexually assaulted the victim and the friend informed her boyfriend’s mother that the victim had been assaulted. State v. Igou, 2005 ND 16, 691 N.W.2d 213, 2005 N.D. LEXIS 19 (N.D. 2005).

Evidence was sufficient to support defendant’s conviction of class AA felony gross sexual imposition because there was evidence in the record supporting the conclusion that the abuse occurred in August 2005, after N.D.C.C. § 12.1-20-03 was amended effective August 1, 2005 to increase the penalty. The child victim’s physician testified that the injuries could have occurred sometime in August 2005 and that the injuries were most likely recent in the last couple of weeks prior to her examination of the victim on September 1, 2005; the victim’s statements to the physician indicated that she had been recently abused. State v. Muhle, 2007 ND 132, 737 N.W.2d 647, 2007 N.D. LEXIS 136 (N.D. 2007).

Evidence was sufficient to support defendant’s guilty verdicts on both counts of gross sexual imposition because both victims testified at trial and implicated defendant in detail and the State presented evidence regarding the law enforcement interview in which defendant admitted he had sexual contact with the victims when they were children. State v. Goebel, 2007 ND 4, 725 N.W.2d 578, 2007 N.D. LEXIS 2 (N.D. 2007).

When comparing the factual basis for defendant’s guilty plea with the elements of gross sexual imposition, N.D.C.C. § 12.1-20-03, the factual basis addressed each essential element of the crime, including (1) the fact that defendant lived with the victim, the victim’s mother, and other children; (2) where the offenses occurred; (3) the fact that defendant had touched her on her privates, on her buttocks, and had put his sexual organ in her mouth; and (4) the fact that the victim was between four and five years old when the sexual contact occurred. Thus, the trial court did not err when it determined the factual basis was sufficient to support the guilty plea; accordingly, the trial court did not err in denying defendant’s motion to withdraw his guilty plea. State v. Bates, 2007 ND 15, 726 N.W.2d 595, 2007 N.D. LEXIS 14 (N.D. 2007).

District court did not err in denying defendant’s motion for a judgment of acquittal because, when viewed in a light most favorable to the verdict, the evidence supported the jury’s verdict finding the defendant guilty of gross sexual imposition; the victim testified that defendant touched her vagina and breasts on several occasions and he digitally penetrated her vagina during the last incident, a videotape of the victim’s forensic interview was shown to the jury, and an officer also testified that defendant admitted touching the victim and made other incriminating statements during an interview. State v. Austin, 2007 ND 30, 727 N.W.2d 790, 2007 N.D. LEXIS 30 (N.D. 2007).

Evidence was sufficient to sustain a defendant’s conviction for gross sexual imposition where a jury could have reasonably concluded that he had engaged in a sex act with the victim based on the testimony of several witnesses who attended the party, as well as the victim’s testimony and the testimony of the nurse who examined the victim the next morning. State v. Fehl-Haber, 2007 ND 99, 734 N.W.2d 770, 2007 N.D. LEXIS 100 (N.D. 2007).

Evidence was sufficient to support defendant’s convictions of gross sexual imposition and abuse or neglect of a child because the son testified that he and defendant had sex after defendant got out of the shower, the daughter testified that defendant was present when her father had sex with her, and a third child testified that defendant had sex with the son. The jury also heard testimony from a detective, a physician who examined the daughter, and an employee of county social services. State v. Muhle, 2007 ND 131, 737 N.W.2d 636, 2007 N.D. LEXIS 135 (N.D. 2007).

Evidence was sufficient to sustain defendant’s conviction on two counts of gross sexual imposition, N.D.C.C. § 12.1-20-03(1)(d) and (2)(a), where the victim testified about defendant’s inappropriate touching, her brothers testified that defendant was often home alone with the victim and her siblings after school, and two doctors had testified that the abrasions on the victim’s genitals were consistent with sexual abuse. State v. Tibor, 2007 ND 146, 738 N.W.2d 492, 2007 N.D. LEXIS 149 (N.D. 2007).

Defendant’s conviction for gross sexual imposition was appropriate pursuant to N.D.C.C. §§ 12.1-20-03 and 12.1-20-02(4) because there was sufficient evidence to support defendant’s conviction where the victim’s mother testified that she observed defendant rubbing the child and the child also testified that defendant touched her sexually. State v. Wegley, 2008 ND 4, 744 N.W.2d 284, 2008 N.D. LEXIS 7 (N.D. 2008).

Evidence was sufficient to convict defendant of gross sexual imposition under N.D.C.C. § 12.1-20-03(1)(e) because the victim’s doctor testified that the 18-year-old victim had a mental age of between nine and 11 years old, that the victim was susceptible to exploitation, and that the victim was incapable of understanding the physiological aspects of sex or the possible consequences of sexual activity. Although defendant claimed to be unaware of the victim’s handicap, a detective testified that there were obvious signs of deficit in the victim when speaking with her, and defendant had lived with the victim and her family for two years. State v. Mosbrucker, 2008 ND 219, 758 N.W.2d 663, 2008 N.D. LEXIS 210 (N.D. 2008).

Evidence was sufficient to support defendant’s conviction of class AA felony gross sexual imposition under N.D.C.C. § 12.1-20-03(1)(d), (3)(a), given that the victim testified that defendant made her “go like this” to his genitals, which testimony was sufficient to establish sexual contact, for purposes of N.D.C.C. § 12.1-20-02(3); furthermore, although defendant argued that the evidence was insufficient because it rested on the victim’s testimony, the uncorroborated testimony of a child was sufficient to sustain a conviction of a sexual offense. State v. Paul, 2009 ND 120, 769 N.W.2d 416, 2009 N.D. LEXIS 135 (N.D. 2009).

Evidence was sufficient to convict defendant of gross sexual imposition where the victim testified defendant touched her vagina with his fingers, mouth, and penis, and also touched her mouth with his penis; the nurse practitioner’s report stated the victim described physical symptoms consistent with genital penetration, and the victim’s description remained consistent when discussing the allegations with different persons. State v. Grant, 2009 ND 210, 776 N.W.2d 209, 2009 N.D. LEXIS 223 (N.D. 2009).

Evidence was sufficient to convict defendant of gross sexual imposition with a child less than six years of age under N.D.C.C. § 12.1-20-03(1)(d) because the child testified that defendant put his hands and his sexual organ in the child’s privates, he made her lick his sexual organ, and the uncorroborated testimony of the child was sufficient to sustain a conviction for gross sexual imposition; the jury saw a videotaped interview of the child by a forensic interviewer in which the child detailed several acts of sexual contact by defendant; and the jury heard a recording of the incriminating statements made by defendant at his house in which he admitted that he had engaged in oral sex with the child. State v. Huether, 2010 ND 233, 790 N.W.2d 901, 2010 N.D. LEXIS 236 (N.D. 2010).

District court erred in dismissing the charge of gross sexual imposition against defendant because the evidence produced by the State was sufficient to establish that a crime had been committed and that defendant was probably guilty as he admitted he engaged in a sexual act with the victim; the victim testified that the sex was not consensual, stating she was asleep on the couch and awoke with defendant having sex with her; the victim provided testimony concerning whether defendant knew or had reasonable cause to believe the victim was unaware of the sexual act; and N.D.C.C. § 12.1-20-03(1)(c) did not require the victim to have been actually unaware that a sexual act was being committed upon her. State v. Midell, 2011 ND 114, 798 N.W.2d 645, 2011 N.D. LEXIS 121 (N.D. 2011).

Evidence was sufficient to find defendant guilty of gross sexual imposition where, in addition to the girl’s testimony, the State presented testimony from several other witnesses, and introduced DNA evidence tending to prove the girl’s testimony was true. State v. Doll, 2012 ND 32, 812 N.W.2d 381, 2012 N.D. LEXIS 33 (N.D. 2012).

Evidence was sufficient to convict defendant of two counts of gross sexual imposition because the first child testified that defendant put his hand up her shirt and touched her nipples and that he put her hand down his pants and touched his private part; although the jury heard the second child's testimony that defendant did not touch her private parts, the jury also heard her forensic interview where she disclosed that defendant did make sexual contact with her by forcing her to sit on his lap while he was naked and that defendant made her hand touch his private part; and the forensic investigator testified that the second child had made disclosures that defendant touched her private parts. State v. Roe, 2014 ND 104, 846 N.W.2d 707, 2014 N.D. LEXIS 101 (N.D. 2014).

Evidence was sufficient to convict defendant of gross sexual imposition because the victim testified she awoke to defendant having sexual intercourse with her and she told him to stop; the victim reported the incident to law enforcement the next day; a report was admitted that showed that defendant's DNA was found on the victim's vaginal swab; and the forensic scientist who conducted the analysis of the swab testified regarding the results. State v. Jasmann, 2015 ND 101, 862 N.W.2d 809, 2015 N.D. LEXIS 101 (N.D. 2015).

There was sufficient evidence in the record to support defendant's gross sexual imposition conviction. There was sufficient evidence on which the jury could conclude penetration occurred, as well as sufficient evidence of violence prior to penetration to show that defendant used force to compel the victim to submit. State v. Truelove, 2017 ND 283, 904 N.W.2d 342, 2017 N.D. LEXIS 288 (N.D. 2017).

District court properly declined to declare a mistrial and entered a judgment against defendant after a jury found him guilty of gross sexual imposition because there was sufficient evidence to support the conviction where the victim’s testimony provided competent evidence to support a finding that defendant engaged in a sexual act with her when she was less than 15 years old, her school friend testified that the victim was “very distraught” and was “confused” that her mother did not believe her, the court did not deviate from established precedent in striking the responses and giving curative instruction, and its failure to grant a mistrial on its own motion did not constitute a clear deviation from applicable law. State v. Lyons, 2019 ND 175, 930 N.W.2d 156, 2019 N.D. LEXIS 176 (N.D. 2019).

Evidence was sufficient to sustain conviction of gross sexual imposition under N.D.C.C. § 12.1-20-03(2)(a) where the elements for gross sexual imposition were proven through the complainant’s testimony, in addition to the other witnesses and evidence, defendant’s argument contending insufficient evidence essentially asked the appellate court to reweigh the trial testimony and find him more credible than the complainant, but the jury had found the complainant more credible. State v. Poulor, 2019 ND 215, 932 N.W.2d 534, 2019 N.D. LEXIS 221 (N.D. 2019).

Because sufficient evidence supported finding defendant used force to compel the victim to submit to a sexual act, the district court did not abuse its discretion when it denied defendant’s motion for acquittal. Defendant’s argument that there was no evidence that the victim physically resisted any action that would need to be overcome in the bedroom where the alleged sexual assault occurred was not supported by the law. State v. Mohammed, 2020 ND 52, 939 N.W.2d 498, 2020 N.D. LEXIS 51 (N.D. 2020).

District court properly denied defendant’s motion for an acquittal because the victim’s testimony was sufficient for the jury to find that he compelled the victim to submit to a sexual act by force, the location of the conduct was not an essential element of the offense, and the issue of prosecutorial misconduct was not sufficiently preserved for appeal or argued on appeal. State v. Samaniego, 2022 ND 38, 970 N.W.2d 222, 2022 N.D. LEXIS 37 (N.D. 2022).

—Victim Less Than Fifteen Years Old.

Where the record showed that on separate occasions when the defendant’s seven-year-old niece stayed overnight at his residence, defendant entered the room where she was sleeping, removed her panties and touched her inside the vagina, and she testified at trial that it happened more than once and at different locations, although the child’s testimony at trial was inconsistent in some respects, it was sufficient to sustain a felony conviction. State v. Schill, 406 N.W.2d 660, 1987 N.D. LEXIS 335 (N.D. 1987).

Although a child’s uncorroborated testimony may be sufficient to sustain a conviction for child sexual abuse, the preferred practice obviously is to support that testimony with as much other evidence as possible. State v. Schill, 406 N.W.2d 660, 1987 N.D. LEXIS 335 (N.D. 1987).

Where the fourteen-year-old victim testified that the adult defendant touched her over her clothes and placed his hand inside her jeans, inside her underwear, and touched her bare skin in the pubic region and where the victim used an exhibit depicting a line drawing of a young girl to mark the areas where defendant had touched her, the evidence was sufficient to permit the jury to draw an inference that defendant had touched victim’s sexual or other intimate parts. State v. Hagensen, 498 N.W.2d 615, 1993 N.D. App. LEXIS 5 (N.D. Ct. App. 1993).

Notwithstanding inconsistencies in the evidence, where the child did not deviate from her basic position that defendant gave her “bad touches” on multiple occasions in various locations, the evidence presented established the essential elements of the crime of gross sexual imposition and was sufficient to sustain the conviction on all counts. State v. Vance, 537 N.W.2d 545, 1995 N.D. LEXIS 171 (N.D. 1995).

Valid factual basis was established for defendant’s plea of guilty to gross sexual imposition, in violation of N.D.C.C. § 12.1-20-03(1)(d); there was testimony that the victim and defendant engaged in sexual contact on at least three separate occasions when defendant was at least 22 years of age and the victim was less than 15 years of age. Mackey v. State, 2012 ND 159, 819 N.W.2d 539, 2012 N.D. LEXIS 162 (N.D. 2012).

Expert Testimony.

Defendant’s conviction for gross sexual imposition and the denial of his motion for a new trial were both proper where the trial court did not abuse its discretion in allowing the State’s handwriting expert to identify defendant as the author of an incriminating letter handwritten in Spanish pursuant to N.D.R.Ev. 702. The private investigator was qualified as an expert in handwriting analysis and his testimony was determined to assist the jury. State v. Hernandez, 2005 ND 214, 707 N.W.2d 449, 2005 N.D. LEXIS 256 (N.D. 2005).

Where defendant was charged with engaging in sexual contact with his former girlfriend’s niece who was under 15 years-old, the trial court did not err in excluding the testimony of defendant’s expert, a psychologist, that defendant did not have a sexual interest in children; defendant was not accused of being a pedophile, but rather having committed or engaged in a sexual act with a minor child and the expert opinion and evaluation was of no probative value to the jury in its determination of whether or not defendant committed the alleged crime. State v. Austin, 2007 ND 30, 727 N.W.2d 790, 2007 N.D. LEXIS 30 (N.D. 2007).

Where defendant was charged with engaging in sexual contact with his former girlfriend’s niece who was under 15 years-old, the trial court did not err in excluding the testimony of defendant’s expert, a psychologist, because the court found that expert testimony was not necessary to tell a jury that a custody battle might be a motivational factor in sexual abuse allegations because the proffered testimony was generic and did not require any expertise and there was no foundation for the opinion that a possible child custody proceeding motivated the allegations in the instant case. State v. Austin, 2007 ND 30, 727 N.W.2d 790, 2007 N.D. LEXIS 30 (N.D. 2007).

Force.

Where, in a prosecution for gross sexual imposition, the court refused a jury request for a definition of the term “force” which is defined by N.D.C.C. § 12.1-01-04, error was committed, but the error was harmless where counsel did not bring the definition to the court’s attention nor object to the answer which was given, and there was substantial evidence to support the conviction. State v. Smuda, 419 N.W.2d 166, 1988 N.D. LEXIS 33 (N.D. 1988).

Where defendant tore a complainant’s pajama bottoms and pulled the pants down in order to engage in a sexual act with the complainant, who feigned sleeping, did not try to resist, and did not attempt to flee, there was no evidence that defendant used force to compel the complainant to submit to the sexual act as required by N.D.C.C. § 12.1-20-03(1)(a). State v. Vantreece, 2007 ND 126, 736 N.W.2d 428, 2007 N.D. LEXIS 127 (N.D. 2007).

In defendant’s trial for gross sexual imposition under N.D.C.C. § 12.1-20-03(1)(a), the prosecutor’s argument relating to the complainant’s diminished mental capacity was neither improper nor prejudicial where the statements were supported by record evidence and the evidence was relevant to the issue of the amount of force which was required by defendant to compel complainant to submit to engaging in a sexual act with him. State v. Vantreece, 2007 ND 126, 736 N.W.2d 428, 2007 N.D. LEXIS 127 (N.D. 2007).

The serious nature of sexual assault is underscored by the North Dakota legislature classifying them as class AA felonies, carrying a potential sentence of life imprisonment without parole under N.D.C.C. §§ 12.1-20-03(3)(a) and 12.1-32-01(1). The North Dakota legislature has defined force to mean physical action in N.D.C.C. § 12.1-01-04(11), and it is the force or physical action by defendant which must compel the victim to submit to a sex act for a crime to be committed under N.D.C.C. § 12.1-20-03(1)(a); in the absence of force or threats of death or serious bodily injury, there is no crime under N.D.C.C. § 12.1-20-03(1)(a). State v. Vantreece, 2007 ND 126, 736 N.W.2d 428, 2007 N.D. LEXIS 127 (N.D. 2007).

Impotence.

Whether or not a defendant is impotent, or can maintain an erection, is not an element of the offense of gross sexual imposition, nor is it a defense to the charge; therefore, the issue of impotency and defendant’s ability to maintain an erection was not a significant factor at his criminal prosecution for gross sexual imposition, and the trial court’s denial of additional public funds for a “nocturnal penile study” did not deny him a fair trial. State v. Gonderman, 531 N.W.2d 11, 1995 N.D. LEXIS 46 (N.D. 1995).

Information.

Allowing the State to amend its information regarding victim the day before trial was not an abuse of discretion where documents produced during discovery and the original charge put defendant on notice that the State could allege that he sexually assaulted the victim with a body part other than his penis under N.D.C.C. § 12.1-20-03(1)(c), and defendant failed to show prejudice. State v. Carlson, 2016 ND 130, 881 N.W.2d 649, 2016 N.D. LEXIS 116 (N.D. 2016).

Jury Instructions.

In a case involving gross sexual imposition, a trial court’s failure to instruct a jury on the age of the victim was reviewed for obvious error because defendant failed to object; after applying the plain error framework of Fed.R.Crim.P. 52(b) to the case, a reversal was not required because the only evidence of inappropriate touching applied to just one victim, who was indisputably under the age of 15 at the time of the incident. State v. Flanagan, 2004 ND 112, 680 N.W.2d 241, 2004 N.D. LEXIS 208 (N.D. 2004).

In a gross sexual imposition case where the jury had to unanimously agree which sexual act or acts the defendant engaged in to find him guilty, a district court's failure to include information in the jury instructions identifying the underlying act for each count of the offense or to instruct the jury that it had to unanimously agree on the underlying act for each count constituted an obvious error; the complaint was not read to the jury and a copy of the complaint was not given to the jury with the jury instructions. State v. Martinez, 2015 ND 173, 865 N.W.2d 391, 2015 N.D. LEXIS 195 (N.D. 2015).

Defendant did not show a unanimity issue amongst the gross sexual imposition counts alleging that he engaged in two sexual acts with the victim because the jury instructions provided information identifying and differentiating the underlying acts; the charges were the same, but each count alleged defendant committed a factually distinct criminal act, and the jury could not find him guilty of both counts without agreeing each distinct act occurred. State v. Gaddie, 2022 ND 44, 971 N.W.2d 811, 2022 N.D. LEXIS 49 (N.D. 2022).

Jury instructions that grouped the elements for the sexual act charges together and the elements for the sexual contact charges together were not misleading or confusing as to the criminal conduct for which defendant was standing trial because the jury instructions and verdict form, taken as a whole, adequately advised the jury that defendant was on trial for four separate crimes. State v. Gaddie, 2022 ND 44, 971 N.W.2d 811, 2022 N.D. LEXIS 49 (N.D. 2022).

Gross sexual imposition charges alleging defendant engaged in sexual contact created a unanimity issue because the instructions did not provide sufficient factual information to distinguish the counts when each permitted a finding of guilt for touching the victim’s vulva; an obvious error occurred because it implicated defendant’s constitutional right to a unanimous verdict since it was not clear the jury agreed on the act supporting the conviction for touching the victim’s breasts and vulva. State v. Gaddie, 2022 ND 44, 971 N.W.2d 811, 2022 N.D. LEXIS 49 (N.D. 2022).

District court did not err when it instructed the jury on the elements of the crimes of gross sexual imposition because the jury was required to find defendant’s actions were willful, and the district court’s instructions correctly advised the jury on that element of the crimes; the charges also required a finding that defendant acted with a specific purpose and correctly instructed the jury on that element of the offense by providing the jury with the definition of sexual contact. State v. Gaddie, 2022 ND 44, 971 N.W.2d 811, 2022 N.D. LEXIS 49 (N.D. 2022).

Juvenile Proceedings.

Remand was necessary to determine if jurisdiction was proper in a district court because N.D.C.C. § 27-20-34(1)(b) was ambiguous on whether delinquent acts of gross sexual imposition, in violation of N.D.C.C. § 12.1-20-03(1)(d), (2)(a), constituted a stand alone offense. The juvenile court incorrectly found that N.D.C.C. § 27-20-34(1)(b) only required a showing that the act of gross sexual imposition occurred, but the legislature intended the clause requiring force or threat of imminent death, serious bodily injury, or kidnapping to modify both gross sexual imposition and attempted gross sexual imposition; therefore, the case was remanded for a hearing where the juvenile court could hear evidence from both parties and make a determination of whether transfer was appropriate under N.D.C.C. 27-20-34(1)(c).Divide County Sheriff's Dep't. v. M.W. (In the Interest of M.W.), 2009 ND 55, 764 N.W.2d 185, 2009 N.D. LEXIS 37 (N.D. 2009).

Purpose of N.D.C.C. § 27-20-34 is to transfer serious, violent crimes to district court. Gross sexual imposition by force or threat of imminent harm is a statutorily violent and a serious crime to be transferred to district court. R.A. v. R.A., 2011 ND 119, 799 N.W.2d 332, 2011 N.D. LEXIS 120 (N.D. 2011).

Plain language of N.D.C.C. § 27-20-34(1)(b) provides that the court shall transfer the offense of gross sexual imposition or attempted gross sexual imposition of a victim by threat of imminent death, serious bodily injury, or kidnapping, and the plain language does not say the threat must be to the victim. The statute is not ambiguous. R.A. v. R.A., 2011 ND 119,