Dominguez v. State, 2013 ND 249

Esteban Dominguez shot at David Nelson four times with a .22 rifle while Nelson fled; charged with attempted murder (N.D.C.C. §§ 12.1-06-01, 12.1-16-01(1)(a) & (b)) and terrorizing.
Jury convicted Dominguez of attempted murder and terrorizing; verdict form did not require specifying subsection (intentional/knowing § 12.1-16-01(1)(a) vs. extreme indifference § 12.1-16-01(1)(b)).
Dominguez’s post-trial motion for new trial was denied as untimely on appeal; he later filed a post-conviction relief (PCR) application asserting attempted murder under § 12.1-16-01(1)(b) is not a cognizable attempt offense.
The district court denied PCR on the merits, relying in part on out-of-state authority recognizing attempted extreme-indifference murder.
The North Dakota Supreme Court reviewed whether attempt requires intent to complete the underlying crime and whether § 12.1-16-01(1)(b) (extreme indifference murder) can serve as the underlying offense for attempt.

Issue	Plaintiff's Argument (Dominguez)	Defendant's Argument (State)	Held
Whether attempted murder based on § 12.1-16-01(1)(b) (murder by extreme indifference) is a cognizable offense	§ 12.1-16-01(1)(b) requires only general/willful conduct (no intent to kill); attempt requires specific intent to complete the underlying crime, so attempted extreme-indifference murder cannot exist	The conviction was valid; jury instructions and verdict supported attempted murder conviction (district court relied on Colorado case recognizing the crime)	Attempt requires intent to complete underlying crime; extreme-indifference murder produces an unintentional death and thus cannot be the underlying crime for attempt — attempted murder under §§ 12.1-06-01 and 12.1-16-01(1)(b) is not a cognizable offense
Whether jury instructions/ verdict permitted conviction of a non-existent crime and thus violated due process	Jury was instructed that attempted murder could be based on either intentional/knowing killing or willful extreme indifference, enabling conviction on a nonexistent theory	State argued prior motions barred/untimely but did not press misuse of process; maintained conviction was authorized	Instructions allowed conviction on an invalid theory; court remanded to determine whether the error was harmless or requires relief

State v. Borner, 2013 ND 141, 836 N.W.2d 383 (majority holding extreme-indifference murder is an unintentional-result, general-intent offense)
Fiore v. White, 531 U.S. 225 (2001) (conviction for conduct not prohibited by statute violates due process)
Hedgpeth v. Pulido, 555 U.S. 57 (2008) (convictions based on multiple theories: invalid theory does not automatically require reversal without harmless-error analysis)
Clark v. State, 2001 ND 9, 621 N.W.2d 576 (North Dakota precedent applying harmless-error principles to constitutional errors)