                Filed 7/11/19 by Clerk of Supreme Court
                         IN THE SUPREME COURT
                     STATE OF NORTH DAKOTA


                                  2019 ND 181


State of North Dakota,                                      Plaintiff and Appellee

      v.

Chase Duane Swanson,                                     Defendant and Appellant


                                 No. 20180373


       Appeal from the District Court of Bowman County, Southwest Judicial
District, the Honorable James D. Gion, Judge.

      REVERSED AND REMANDED.

      Opinion of the Court by Jensen, Justice.

       Britta K. Demello Rice (argued), Assistant Attorney General, Bismarck, ND,
and Andrew J. Q. Weiss (on brief), State’s Attorney, Bowman, ND, for plaintiff and
appellee.

      Thomas F. Murtha IV, Dickinson, ND, for defendant and appellant.
                                  State v. Swanson
                                    No. 20180373


       Jensen, Justice.
[¶1]   Chase Swanson appeals from a district court’s judgment finding him guilty of
conspiracy to commit murder. The jury instructions allowed Swanson to be convicted
of a conspiracy to “knowingly” cause the death of another human being. He argues
conspiracy to “knowingly” cause the death of another human being is a non-
cognizable offense because it does not require the actor to have had an intent to cause
the death. We reverse the judgment of conviction on the charge of conspiracy to
commit murder and remand this case to the district court for a new trial.
                                           I
[¶2]   On August 19, 2016, Swanson was present within a motel room in Bowman,
North Dakota when the victim was killed. Swanson was charged with several crimes,
including conspiracy to commit murder by either knowingly or intentionally causing
the death of another human being under N.D.C.C. §§ 12.1-06-04 (defining
conspiracy) and 12.1-16-01(1)(a) (defining murder).
[¶3]   Swanson objected to the inclusion of “knowingly” as a possible mental state
for causing the death of another human being within the conspiracy to commit murder
charge. Swanson’s proposed jury instructions excluded “knowingly” as a mental state
and would have required the jury to find that he entered into an agreement to
intentionally cause the death of another human being. He argued the charge of
conspiracy to “knowingly” cause the death of another human being is a non-
cognizable offense because it does not require an intent to cause a death. Swanson
also objected to the State’s proposed jury instruction, which allowed Swanson to be
convicted of conspiracy to commit murder by entering into an agreement to either
“intentionally or knowingly” cause the death of another human being.


                                          1
[¶4]   The district court rejected Swanson’s argument that conspiracy to “knowingly”
cause the death of another human being was a non-cognizable offense. The court’s
jury instruction defined the underlying crime of murder, within the alleged conspiracy
to commit murder, as having the mental state of either intentionally or knowingly.
The jury instruction defined “knowingly” as “when [an individual] engage[s] in the
conduct, they know or have a firm belief, unaccompanied by substantial doubt, that
they are doing so, whether or not it is their purpose to do so.” (Emphasis added). The
district court’s jury instruction regarding the definition of “knowingly” incorporated
the statutory definition of “knowingly” codified in N.D.C.C. § 12.1-02-02.
[¶5]   Swanson contends the inclusion of “knowingly” allowed the jury to convict
him of conspiracy to commit murder without having an intent to cause the death of
another human being. Swanson argues our prior caselaw defining the elements of
conspiracy to commit murder requires the State to prove he entered into a conspiracy
intending to cause a death. His argument can be resolved by determining whether our
prior caselaw defining the elements of conspiracy to commit murder requires proof
of an intent to cause the death of another human being and, if so, whether the
definition of “knowingly” would allow a conviction without a determination that
Swanson had the intent to cause the death of another human being.
                                          II
[¶6]   This Court has previously determined the offense of conspiracy to commit
murder is a non-cognizable offense when charged under N.D.C.C. §§ 12.1-06-04 and
12.1-16-01(1)(b). State v. Borner, 2013 ND 141, ¶ 20, 836 N.W.2d 383. In Borner,
an individual was convicted of conspiracy to commit a murder under N.D.C.C. §
12.1-16-01(1)(b), which requires a mental state of “engag[ing] in conduct constituting
murder under circumstances manifesting an extreme indifference to the value of
human life.” Id. at ¶ 8. Swanson argues our decision in Borner limits a conviction
for conspiracy to commit murder to instances in which the State proves there was an
intent to cause a death. The State argues our decision in Borner only precludes
                                          2
conspiracy to commit murder when the underlying murder charge is premised on
N.D.C.C. § 12.1-16-01(1)(b).
[¶7]   In Borner, the majority framed the issue on appeal as follows:
       The dispositive issue in this case is whether the crime of conspiracy to
       commit extreme indifference murder is a cognizable offense under
       North Dakota law. In other words, if a co-conspirator agrees to create
       circumstances manifesting an extreme indifference to the value of
       human life, but does not agree to cause death, can he be charged with
       conspiracy to commit murder. We conclude conspiracy to commit
       murder requires a finding of intent to cause death and cannot be based
       on the theory of murder under N.D.C.C. § 12.1-16-01(1)(b), extreme
       indifference murder.
2013 ND 141, ¶ 7, 836 N.W.2d 383 (emphasis added). In addition to the majority
framing the issue as whether a charge of conspiracy to commit murder requires a
finding of intent to cause death, the dissent also acknowledged the majority opinion
required the conspirators to have intended to cause the death of another. Id. at ¶ 37
(Sandstrom, J., dissenting). Throughout the dissent in Borner, the dissent challenges
the majority’s conclusion that “an intent to kill” is an essential element of the offense
of conspiracy to commit murder. Id. at ¶¶ 39, 40, and 68 (Sandstrom, J., dissenting).
[¶8]   In Borner, the State and the defendant advanced arguments similar to those
advanced in the present case:
              The State argues it was not required to prove an intent to kill
       because extreme indifference murder does not require a “specific
       intention to cause death” and, if intent to kill is a requirement of
       conspiracy to commit murder, extreme indifference murder would not
       be applicable under conspiracy as it would always be conspiracy to
       commit intentional murder. Borner argues the conspirators must agree
       and intend to cause the death of another.
2013 ND 141, ¶ 17, 836 N.W.2d 383 (emphasis added). After substantial analysis of
our statutes, caselaw, and the Model Penal Code, the majority in Borner concluded
as follows:
       Conspiracy, however, requires the intent to cause a particular result that
       is criminal. To be guilty of conspiracy to commit murder, an individual
                                           3
       must intend to achieve the results—causing the death of another human
       being. 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. An individual cannot intend to achieve a
       particular offense that by its definition is unintended.
Id. at ¶ 18 (emphasis added).
[¶9]   The majority’s conclusion in Borner was supported by a comprehensive review
of cases from other jurisdictions, after which we concluded as follows:
              We are persuaded by the reasoning of those courts that conclude
       conspiracy to commit unintentional murder creates a logical
       inconsistency because one cannot agree in advance to accomplish an
       unintended result. We conclude conspiracy is a specific intent crime
       requiring intent to agree and intent to achieve a particular result that is
       criminal. Specifically, to find a person guilty of conspiracy to commit
       murder, the State must prove (1) an intent to agree, (2) an intent to
       cause death, and (3) an overt act. Therefore, conspiracy to commit
       extreme indifference murder, under N.D.C.C. §§ 12.1-06-04 and
       12.1-16-01(1)(b), is not a cognizable offense.
2013 ND 141, ¶ 20, 836 N.W.2d 383 (citations and quotation marks omitted).
[¶10] Prior to the ultimate holding in Borner that “conspiracy to commit extreme
indifference murder, under N.D.C.C. §§ 12.1-06-04 and 12.1-16-01(1)(b), is not a
cognizable offense,” the majority concluded that “to find a person guilty of conspiracy
to commit murder, the State must prove (1) an intent to agree, (2) an intent to cause
death, and (3) an overt act.” 2013 ND 141, ¶ 20, 836 N.W.2d 383 (emphasis added).
The majority’s holding that conspiracy to commit extreme indifference murder, under
N.D.C.C. §§ 12.1-06-04 and 12.1-16-01(1)(b), is not a cognizable offense was only
reached because the majority first determined every charge of conspiracy to commit
murder requires the State to prove there was an intent to cause the death of another
human being. We agree with Swanson that the majority in Borner determined a
charge of conspiracy to commit murder requires the State to prove an intent to cause



                                           4
the death of another human being. The State has not requested we reconsider our
prior holding in Borner.
                                          III
[¶11] Our inquiry into whether conspiracy to commit murder under N.D.C.C. §§
12.1-06-04 and 12.1-16-01(1)(a), is a cognizable offense does not end with a
determination the State is required to prove intent to cause a death. We must also
determine if “knowingly” causing a death, as provided in N.D.C.C. §
12.1-16-01(1)(a), would impermissibly allow a conviction without proof of intent to
cause a death.
[¶12] “Statutory interpretation is a question of law, fully reviewable on appeal.”
State v. Bearrunner, 2019 ND 29, ¶ 5, 921 N.W.2d 894. “The primary purpose of
statutory interpretation is to determine legislative intent.” Id. Words in a statute are
given their plain, ordinary, and commonly understood meaning, unless defined by
statute or unless a contrary intention plainly appears. N.D.C.C. § 1-02-02.
[¶13] 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.” Black’s Law Dictionary 1431 (10th ed. 2014).
“Intention” and “purpose” are synonyms. Merriam-Webster’s Collegiate Dictionary
651 (11th ed. 2005). 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.
[¶14] Our holding in Borner requires the State to prove intent to cause the death of
another to support a charge of conspiracy to commit murder. Because the inclusion
of “knowingly” in the jury instruction allowed the jury to convict Swanson of
conspiracy to commit murder without an intent to cause the death of another human
                                           5
being, the instruction was improper and allowed Swanson to have potentially been
convicted of a non-cognizable offense.
                                         IV
[¶15] Conspiracy to “knowingly” commit a murder is a non-cognizable offense
because it allows an individual to be convicted of the offense without an intent to
cause the death of another human being. We reverse the judgment of conviction with
regard to the charge of conspiracy to commit murder and remand to the district court
for a new trial on that charge.
[¶16] Jon J. Jensen
      Jerod E. Tufte
      Daniel J. Crothers
      Gerald W. VandeWalle, C.J.

       I concur in the result.
       Lisa Fair McEvers




                                         6
