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before that date, defense counsel objected to instruction on voluntary intoxication on the ground that it stated law no longer in effect after adoption of the new Criminal Code, defendant had made the election, or given the “consent” provided for in subsection 3, to rely on the provisions of the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As to crimes committed prior to July 1, 1975, the section under which accused is charged is not considered repealed and remains in full force and effect until all of the matter thereunder has been completed except that, with accused’s consent, Title 12.1 may be applied;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12.1 would be tried and sentenced under the law in effect at the time and that the law violated would not be considered repealed until legal process against the accused had been completed.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).

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).

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).

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).

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).

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).

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).

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).

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).

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).

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.

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).

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).

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).

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).

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).

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).

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.

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).

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.

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.

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).

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.

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).

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.

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).

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).

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).

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).

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).

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).

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).

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.

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).

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).

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.

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.

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).

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).

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).

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.

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.

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).

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).

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).

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).

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).

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).

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).

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).

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).

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).

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).

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).

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).

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).

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).

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.

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).

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.

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).

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.

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).

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).

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).

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).

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).

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).

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).

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).

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).