State v. Clark, 2015 ND 201

On May 11, 2013, Joshua Clark and Theo Crowe drank together in Bismarck; statements were made that they were “so mad they could kill somebody.”
Crowe attacked John Swain in Crowe’s apartment with a hammer; Clark testified Crowe then told him “it’s your turn now,” and Clark struck Swain once, then assisted moving and dismembering the body and concealing evidence.
Clark gave inconsistent statements to police about his role, at times denying and at other times admitting involvement and that his hammer was used; he later buried the hammer in concrete footings.
Crowe refused to testify at Clark’s trial. The State charged both with conspiracy to commit murder under N.D.C.C. §§ 12.1-16-01(1)(b) and 12.1-06-04; a jury convicted Clark of conspiracy.
Clark appealed, arguing insufficient evidence of an agreement to commit murder and that post-homicide conduct cannot supply proof of conspiracy.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of evidence for conspiracy	State: Clark’s statements, conduct during the killing, and post-crime concealment support an implicit agreement with Crowe	Clark: No direct evidence of an agreement; statements were idle talk while intoxicated; his involvement began after Swain was already dead	Court: Affirmed — circumstantial evidence and Clark’s inconsistent admissions permit a rational juror to infer an implicit agreement
Relevance of post-offense conduct to conspiracy	State: N.D.C.C. § 12.1-06-04(3) treats concealment and related acts as objectives of a conspiracy	Clark: Relies on federal cases saying concealment alone cannot prove conspiracy	Court: Distinguished federal law; under ND statute and precedent, concealment and efforts to frustrate objectives are relevant and may support a conspiracy finding

State v. Addai, 778 N.W.2d 555 (N.D. 2010) (standard for reviewing sufficiency of the evidence on appeal)
State v. Noorlun, 705 N.W.2d 819 (N.D. 2005) (discussing reasonable-inference review in sufficiency challenges)
State v. Cain, 806 N.W.2d 597 (N.D. 2011) (agreement may be implied from conduct during the offense)
In Interest of J.A.G., 552 N.W.2d 317 (N.D. 1996) (agreement or understanding may be shown by parties’ conduct)
State v. Rambousek, 479 N.W.2d 832 (N.D. 1992) (distinguishing federal bilateral-conspiracy theory from North Dakota’s unilateral statutory scheme)
Grunewald v. United States, 353 U.S. 391 (U.S. 1957) (federal holding regarding limits on using post-offense concealment to prove conspiracy)
United States v. Todd, 657 F.2d 212 (8th Cir. 1981) (federal decision expressing skepticism that evidence of concealment established agreement)