State v. Hartson

                 IN THE SUPREME COURT
                 STATE OF NORTH DAKOTA

                                

State of North Dakota,                               Plaintiff and Appellee
     v.
Kevin Cornelius Hartson,                          Defendant and Appellant

                                No. 20230243

Appeal from the District Court of Burleigh County, South Central Judicial
District, the Honorable Daniel J. Borgen, Judge.

AFFIRMED.

Opinion of the Court by Jensen, Chief Justice.

Dennis H. Ingold (argued), Assistant State’s Attorney, and Julie A. Lawyer
(appeared), State’s Attorney, Bismarck, ND, for plaintiff and appellee.

Kiara C. Kraus-Parr, Grand Forks, ND, for defendant and appellant.
                               State v. Hartson
                                 No. 20230243

Jensen, Chief Justice.

[¶1] Kevin Hartson appeals from a criminal judgment entered after a jury
found him guilty of felony murder. Hartson argues the district court erred in
allowing the State to remove “knowingly” from the charge of felony murder and
use only the culpability level of “intentional”; committed obvious error in
instructing the jury by misstating the law; and allowing for a verdict without
a unanimous jury finding on the predicate felony offense. We affirm.

                                        I

[¶2] Hartson was charged with felony murder alleging the predicate offenses
of attempted robbery and attempted felonious restraint in violation of N.D.C.C.
§ 12.1-16-01(1)(c). In summary, the State alleged Hartson was guilty of felony
murder because the victim was killed while Hartson was engaged in an
attempt to rob or feloniously restrain the victim. Hartson moved to dismiss the
charge of felony murder, arguing it is not a legally cognizable offense. Hartson
argued there is an inconsistency in the elements of criminal attempt and the
elements of the underlying predicate felonies which is impossible to rectify. He
asserts a charge of criminal attempt requires the actor to have intended to
complete the commission of the underlying crime, while the underlying
offenses of robbery and felonious restraint only require the actor to act
knowingly. He contends that because mens rea of knowingly includes but does
not require an intent to commit a crime, he was convicted of something that is
not possible, intending to commit a crime that does not require intent.

[¶3] The district court denied Hartson’s motion to dismiss. The court
explained that under N.D.C.C. § 12.1-02-02(4), “any lesser degree of required
culpability is satisfied if the proven degree of culpability is higher.” The court
found that any inconsistency could be reconciled by requiring the State to apply
intentional culpability to both the attempt and the underlying predicate
felonies of robbery or felonious restraint. A jury trial was held and Hartson
was found guilty of felony murder. This appeal followed.


                                        1
                                        II

[¶4] On appeal, Hartson argues the crime of felony murder based on the
predicate offenses of attempted robbery and attempted felonious restraint is
not a cognizable offense. Hartson argues “[o]ne cannot have the specific intent
to commit a robbery, theft through intentional violence or threats, when the
underlying theft requires only knowing culpability.” Similarly, he further
claims “one cannot attempt to knowingly restrain another under terrorizing
circumstances or under circumstances exposing him to risk of serious injury.”

[¶5] This Court has stated “[t]he interpretation of a statute is a question of
law, which is fully reviewable on appeal.” Dominguez v. State, 

, 

. The criminal attempt statute, N.D.C.C. § 12.1-06-01(1),
states:

      A person is guilty of criminal attempt if, acting with the kind
      of culpability otherwise required for commission of a crime, he
      intentionally engages in conduct which, in fact, constitutes a
      substantial step toward commission of the crime. A “substantial
      step” is any conduct which is strongly corroborative of the firmness
      of the actor’s intent to complete the commission of the crime.
      Factual or legal impossibility of committing the crime is not a
      defense, if the crime could have been committed had the attendant
      circumstances been as the actor believed them to be.

Felonious restraint and robbery require a knowing culpability. See N.D.C.C. §§
12.1-18-02, 12.1-22-01. A person engages in conduct “knowingly” if “when he
engages in the conduct, he knows or has a firm belief, unaccompanied by
substantial doubt, that he is doing so, whether or not it is his purpose to do so.”
N.D.C.C. § 12.1-02-02(1)(b).

[¶6] In State v. Borner, we held the offense of conspiracy to commit murder
under circumstances manifesting extreme indifference to the value of human
life was not a cognizable offense. 

, 836 N.W2d 383.
“Conspiracy is an inchoate crime that is completed upon an agreement and an
‘overt act in pursuance of the conspiracy by any party thereto.’” 

 at ¶ 12
(quoting to 2 Wayne R. LaFave, Substantive Criminal Law § 12.1(c), at 263 (2d


                                        2
ed. 2003) (footnotes omitted)). “Extreme indifference murder is a general intent
crime, not a specific intent crime.” Id. at ¶ 18. “[A] person does not intend to
cause the death of another human-being, but rather death is a consequence of
the defendant’s willful conduct.” Id. “Conspiracy, however, requires the intent
to cause a particular result that is criminal.” Id. “Therefore, charging a
defendant with conspiracy to commit unintentional murder creates an
inconsistency in the elements of conspiracy and extreme indifference murder
that is logically and legally impossible to rectify.” Id. “An individual cannot
intend to achieve a particular offense that by its definition is unintended.” Id.

[¶7] In Dominguez, we held the offense of attempted murder under N.D.C.C.
§§ 12.1-06-01 and 12.1-16-01(1)(b) is not a cognizable offense. 

. We said the plain language of the attempt statute, N.D.C.C. § 12.1-06-
01(1), requires that “the accused have an intent to complete the commission of
the underlying crime.” Dominguez, at ¶ 12. The offense of murder requires the
defendant to cause the death of another; therefore, in order to intend to
complete the commission of the offense for purposes of attempted murder, the
defendant must have an intent to cause the death of another. Id. at ¶ 13. We
held the offense of attempted murder requires the accused to have an intent to
kill. Id. at ¶ 22. We explained the offense of murder under N.D.C.C. § 12.1-16-
01(1)(b) requires a person to cause the death of another human being under
circumstances manifesting an extreme indifference to the value of human life,
it results in an unintentional death, and it does not require the person to act
with specific intent to kill. Id. at ¶¶ 13, 22. We held murder under N.D.C.C. §
12.1-16-01(1)(b) cannot be used as the underlying crime for a charge of
attempted murder because it does not require proof of an intent to complete
the commission of the underlying crime by causing death. Id. at ¶ 22.

[¶8] In State v. Swanson, 

, 

, this Court held
conspiracy to “knowingly” commit murder is a non-cognizable offense. The
Court explained the charge of conspiracy to commit murder requires the State
to prove an intent to cause the death of another human being. Id. at ¶ 10. This
Court further explained:




                                       3
      Knowingly is statutorily defined as follows: “[A] person engages in
      conduct . . . [k]nowingly if, when he engages in the conduct, he
      knows or has a firm belief, unaccompanied by substantial doubt,
      that he is doing so, whether or not it is his purpose to do so.”
      N.D.C.C. § 12.1-02-02 (emphasis added). “Purpose” is defined as
      “[a]n objective, goal, or end.” “Intention” and “purpose” are
      synonyms. As such, the term knowingly, when used in conjunction
      with N.D.C.C. § 12.1-16-01(1)(a), permits an individual to be
      convicted of a murder when they did not have the purpose
      (synonymous with intent) to cause the death of another human
      being.

Id. at ¶ 13 (citations omitted).

[¶9] We held conspiracy to “knowingly” commit a murder is not a cognizable
offense “because it allows an individual to be convicted of the offense without
an intent to cause the death of another human being.” Swanson, 

. We reversed the defendant’s conviction for conspiracy to commit murder
because the jury instructions used the term “knowingly,” which would allow
the jury to convict the defendant without finding he had an intent to cause the
death of another human being and allowed the defendant to have potentially
been convicted of a non-cognizable offense. Id. at ¶ 14.

[¶10] We held “knowingly,” as defined in N.D.C.C. § 12.1-02-02, does not
require the person to act with purpose, and when used in N.D.C.C. § 12.1-16-
01(1)(a), permits a person to be convicted of murder when the person did not
intend to cause the death of another human being. Swanson, 

. Because the offense of attempted murder requires the accused to have
the intent to complete the commission of the underlying crime by causing the
death of another and a “knowing” murder under N.D.C.C. § 12.1-16-01(1)(a)
does not require the accused to have the intent to cause the death of another,
a “knowing murder” cannot be the basis for an attempted murder conviction.
Swanson, at ¶ 14. We concluded an attempted “knowing” murder is a non-cognizable offense. Id. at ¶ 15.

[¶11] In State v. Pemberton, we held attempt to knowingly commit murder was
a non-cognizable offense. 

, 

. Attempt requires


                                      4
an intent to commit the underlying crime. Id. at ¶ 11. A person is guilty of
murder under N.D.C.C. § 12.1-06-01(1)(b) if the person intentionally or
knowingly causes the death of another human being. Pemberton, at ¶ 10. “A
person engages in conduct ‘intentionally’ ‘if, when he engages in the conduct,
it is his purpose to do so.’” Id. (quoting N.D.C.C. § 12.1-02-02(1)(a)). “A person
engages in conduct ‘knowingly’ ‘if, when he engages in the conduct, he knows
or has a firm belief, unaccompanied by substantial doubt, that he is doing so,
whether or not it is his purpose to do so.’” Id. (quoting N.D.C.C. § 12.1-02-
02(1)(b)).

      Because the offense of attempted murder requires the accused to
      have the intent to complete the commission of the underlying
      crime by causing the death of another and a “knowing” murder . .
      . does not require the accused to have the intent to cause the death
      of another, a “knowing murder” cannot be the basis for an
      attempted murder conviction.

Id. at ¶ 13.

[¶12] In light of our decisions in Borner, Dominguez, Swanson, and Pemberton,
the district court removed from the jury instructions the reference to a
“knowing culpability” and replaced it with an “intentional culpability.”
Hartson argues this was an impermissible modification of the crime, intrudes
on the legislative branch, and undermines our conclusions in the
aforementioned cases. The State contends, and we agree, that under N.D.C.C.
§ 12.1-02-02(4), a lesser degree of culpability is satisfied if the proven degree
of culpability is higher. The legislature has provided an express authorization
allowing a greater degree of culpability to replace a lesser degree of culpability
for a criminal offense. We conclude the court did not err in modification of the
level of culpability. Having concluded modification of the level of culpability
was permissible, we note our decision in State v. Pendleton, 

, 

, forecloses the argument put forth by Hartson and distinguishes
this case from Borner, Dominguez, Swanson, and Pemberton.

[¶13] In Pendleton, the defendant argued he was charged with a non-cognizable offense, attempted knowing murder. 

, ¶ 15.


                                        5
      The information used both the “intentionally” and “knowingly”
      culpability terms in the attempted murder charges. The opening
      jury instructions also used the “knowingly” term. However, the
      instructions were then amended for the closing charge to the jury.
      The amended instructions given to the jury for deliberations on the
      attempted murder counts stated the following:

               The State’s burden of proof is satisfied if the evidence shows
               beyond a reasonable doubt, the following essential elements:
               1. On or about May 27, 2020, in Grand Forks, North Dakota;
               2. The defendant, Salamah Qareed Pendleton;
               3. Intentionally;
               4. Engaged in the conduct which constitutes a substantial
               step toward commission of the crime of murder;
               5. Specifically, the defendant attempted to kill [victim’s
               name]; and
               6. The Defendant did not act in self-defense.

      The instructions included a warning that these instructions
      modified and superseded the prior opening instructions.

Id. at ¶ 17.

[¶14] This Court concluded the jury instructions informed the jury of the level
of culpability necessary to convict Pendleton on the attempted murder charges.
Pendleton, 

.

      [T]he “intentionally” language in element three directly modifies
      element four, describing the charged conduct. The use of the word
      “specifically” in element five explains that element five is a further
      articulation or refinement of element four. Therefore, when
      reading the jury instructions as a whole, we conclude the
      instructions fairly advised the jury that they could convict
      Pendleton on nothing less than intentional attempted murder.
      Further, although the opening instructions stated the word
      “knowingly,” the final instructions clearly provided that the
      instructions replaced and superseded the opening instructions.
      Thus, we affirm the attempted murder convictions.

Id.



                                          6
[¶15] Here, the State alleged Hartson committed the offense of murder under
N.D.C.C. § 12.1-16-01(1)(c) and alleged the predicate felonies, attempted
robbery and attempted felonious restraint. Although a person can be convicted
of felonious restraint under N.D.C.C. § 12.1-18-02(2) if the person “[k]nowingly
restrains another under terrorizing circumstances or under circumstances
exposing him to risk of serious bodily injury[,]” the district court instructed the
jury in this case that “felonious restraint” is defined as “[a] person who
intentionally restrains another person under terrorizing circumstances or
under circumstances exposing the person to risk of serious bodily injury is
guilty of Felonious Restraint.” Like Pendleton, the instruction fairly advised
the jury that they could convict Hartson on nothing less than intentional
conduct.

[¶16] The same is true of the attempted robbery predicate felony in this case.
Although a person can be convicted of robbery under N.D.C.C. § 12.1-22-01(1)
based on willful conduct, the jury instructions in this case defined “robbery” as
“[a] person who, in the course of committing a theft, intentionally inflicts or
attempts to inflict bodily injury upon another person, or threatens or menaces
another person with imminent bodily injury is guilty of Robbery.” As such, with
respect to the attempt to commit the predicate crimes or the commission of the
predicate crimes, the jury had to find that Hartson acted intentionally,
regardless of whether the predicate felonies can, in some instances, be
committed knowingly.

[¶17] We conclude the jury was properly instructed that it could convict
Hartson on nothing less than intentional conduct with respect to the predicate
felonies. We conclude the court properly modified the level of culpability and
properly instructed the jury on the level of culpability required to convict
Hartson.

                                       III

[¶18] Hartson argues the district court erred when it failed to instruct the jury
on the definition of “attempt” and not requiring a unanimous decision on the
attempted underlying predicate offenses. Hartson asserts the jury should have
been provided separate verdict forms for each predicate offense.

                                        7
[¶19] “The district court must instruct the jury on the law; however, the parties
must request and object to specific jury instructions.” State v. Jacob, 

, 

. “A party who objects to an instruction . . . must do
so on the record, stating distinctly the matter objected to and the grounds[.]”
N.D.R.Crim.P. 30(c)(1).

[¶20] When a defendant fails to object to a proposed instruction properly, or
fails to specifically request an instruction or object to the omission of an
instruction, the issue is not adequately preserved for appellate review and our
inquiry is limited under N.D.R.Crim.P. 52(b) to whether the jury instructions
constitute obvious error affecting substantial rights. State v. Erickstad, 

, 

.

[¶21] Hartson did not object to the instructions given. The term “attempt” was
not defined in the jury instructions. Hartson contends the absence of the
attempt instruction resulted in the jury not being instructed on an element of
the offense.

[¶22] This issue has previously been addressed by this Court and other courts.
The Eighth Circuit has previously provided the following summary: “There is
no showing in the record that the defense requested an instruction defining
attempt. The failure to instruct was not questioned by an objection. The word
‘attempt’ is a word of general use. There is no showing of plain error.” United
States v. Watson, 

 (8th Cir. 1992); see also State v. Smuda,

 (N.D. 1988) (the trial court’s failure to submit statutory
definition of that term was not obvious error affecting defendant’s substantial
rights). We conclude Hartson has failed to demonstrate an obvious error with
regard to the absence of an instruction on attempt.

[¶23] Hartson did not request an unanimity instruction. All verdicts in
criminal cases must be unanimous. N.D. Const. art. I, § 13; N.D.R.Crim.P.
31(a). This Court has not previously determined whether the jury must
unanimously agree on which underlying offense was attempted when a
defendant is alleged to have committed multiple predicate offenses as part of
a charge of felony murder. However, “The majority of courts that have


                                       8
considered the issue have not required the jury to unanimously agree on the
predicate felony in cases in which the state has presented evidence of alternate
predicate felony offenses to support a single charge of felony murder.” Lawson
v. State, 

 (Alaska Ct. App. 2011); White v. State, 

 (Tex. Crim. App. 2006) (no unanimity instruction required in
felony murder case alleging multiple predicate felonies); State v. Adams, 

, 

, 

 (O’Donnell, J.,
concurring) (“As long as the jury unanimously convicts the defendant of
aggravated murder, the jurors need not be unanimous as to the predicate
offense or offenses the defendant committed.”).

[¶24] In order to prove obvious error, Hartson was required to show the district
court made a clear deviation from an established rule of law. This Court has
not considered the issue of whether an unanimity instruction is required in a
felony murder prosecution in which the State has alleged more than one
predicate felony. Other jurisdictions that have considered this issue have not
required unanimity on which predicate offense was attempted by the
defendant. Therefore, the court did not deviate from established law. Hartson
has not met his burden of showing the court’s jury instructions constituted
obvious error.

[¶25] Finally, Hartson argues there should have been a separate verdict form
for each theory, or underlying crime, the State is asserting. “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, 

, 

. Not including separate
verdict forms for each predicate felony was not error and therefore not obvious
error.

                                      IV

[¶26] Hartson argues the evidence presented at trial was insufficient to convict
him of felonious restraint. We review challenges to the sufficiency of the
evidence as follows:




                                       9
      [W]e look only to the evidence and reasonable inferences most
      favorable to the verdict to ascertain if there is substantial evidence
      to warrant the conviction. A conviction rests upon insufficient
      evidence only when, after reviewing the evidence in the light most
      favorable to the prosecution and giving the prosecution the benefit
      of all inferences reasonably to be drawn in its favor, no rational
      fact finder could find the defendant guilty beyond a reasonable
      doubt. In considering a sufficiency of the evidence claim, we do not
      weigh conflicting evidence, or judge the credibility of witnesses.

State v. Anderson, 

, 

 (quoting State v. Hannah,

, 

).

[¶27] Hartson was charged with violating N.D.C.C. § 12.1-18-02, which states
a person is guilty of felonious restraint, a class C felony, if the person:
knowingly abducts another; knowingly restrains another under terrorizing
circumstances or under circumstances exposing him to risk of serious bodily
injury; or restrains another with the intent to hold him in a condition of
involuntary servitude. Hartson asserts there was insufficient evidence to
sustain a guilty verdict on the predicate charge of felonious restraint because
the entire confrontation with the deceased was less than two minutes, and
therefore, the deceased was not confined for a substantial period of time. He
also contends that because the victim was shot while running away, it is
impossible to find the victim’s death was caused during the course of and in
furtherance of him being restrained. Hartson challenges only the sufficiency of
the felonious restraint predicate offense.

[¶28] The State presented evidence that showed Hartson pinned the deceased
to the wall while a gunman waited outside. He restrained the deceased until a
roommate intervened. The roommate ran towards Hartson, jumped on
Hartson’s back, and put him into a chokehold. The roommate and Hartson
stumbled backwards together. Hartson’s co-defendant began to shoot. While
attempting to shut the door, the roommate was shot in the right hand. The
deceased suffered a gunshot wound in the back. Felonious restraint involves
knowingly restraining another under terrorizing circumstances or under
circumstances exposing the person to risk of serious bodily injury.



                                       10
[¶29] Reviewing all evidence in the record in a light most favorable to the
verdict, we conclude the evidence is sufficient to sustain the conviction.

                                       V

[¶30] We conclude the district court did not err in allowing the State to remove
“knowingly” from the charge of felony murder and use only the greater
culpability level of “intentional”; it was not an obvious error to not include the
definition of “attempt” within the jury instructions; it was not an obvious error
not to require a unanimous decision on the attempted predicate offense; and it
was not an obvious error to not require separate verdict forms for each
predicate felony offense. Finally, we conclude the evidence was sufficient to
sustain the verdict. We affirm.

[¶31] Jon J. Jensen, C.J.
      Daniel J. Crothers
      Lisa Fair McEvers
      Jerod E. Tufte
      Douglas A. Bahr




                                       11