## Facts

- Cody Borner and a codefendant were charged with two counts of conspiracy to commit murder under N.D.C.C. § 12.1-06-04 and N.D.C.C. § 12.1-16-01(1)(b) (murder under circumstances manifesting extreme indifference to human life).
- The amended information alleged the defendants agreed to “knowingly engage in or cause circumstances manifesting extreme indifference to the value of human life,” and that overt acts included arriving at an apartment with loaded firearms, brandishing them, and firing multiple times.
- The shooting killed Michael Padilla and injured Timothy Padilla.
- Borner did not object at trial to the amended information or to jury instructions framing the conspiracy as an agreement to engage in extreme-indifference conduct rather than an agreement with intent to cause death.
- A jury convicted Borner on both conspiracy counts, and the district court entered judgment.
- Borner appealed, arguing the charging theory alleged a non-existent crime because “conspiracy to commit extreme indifference murder” is not cognizable under North Dakota law.

## Issues

1. Whether North Dakota law recognizes “conspiracy to commit murder” when the object offense is extreme-indifference murder under N.D.C.C. § 12.1-16-01(1)(b).
2. Whether a conspiracy charge is legally sufficient when it alleges agreement to engage in extreme-indifference conduct, without alleging intent to cause death.
3. Whether convictions must be reversed when the State prosecutes and obtains judgment on a noncognizable offense.

## Decision

- The North Dakota Supreme Court reversed the judgment of conviction.
- The court held that “conspiracy to commit murder” predicated on N.D.C.C. § 12.1-16-01(1)(b) is not a cognizable offense.
- Because conspiracy requires intent to achieve a criminal result and extreme-indifference murder does not require intent to kill, the charge was legally invalid.

## Legal Principles

- Conspiracy under N.D.C.C. § 12.1-06-04 requires proof the defendant intended to agree and intended to achieve a particular criminal result.
- For conspiracy to commit murder, the State must allege and prove intent to cause death.
- Extreme-indifference murder under N.D.C.C. § 12.1-16-01(1)(b) addresses causing death through highly dangerous conduct reflecting extreme indifference to human life, rather than a purposeful intent to kill.
- A conspiracy theory cannot be based on an offense defined by an unintended result; one cannot intend to accomplish an unintentional homicide as the target result.
- When the charging instrument alleges a noncognizable offense, a conviction obtained on that charge cannot stand and must be reversed.

## Conclusion

The court reversed Borner’s convictions because North Dakota conspiracy law requires intent to cause death, and that intent element cannot be reconciled with extreme-indifference murder, which is defined without an intent-to-kill requirement.


State v. Borner, 836 N.W.2d 383 (N.D. 2013)