State v. Hartson, 2024 ND 78

Kevin Hartson was convicted of felony murder based on predicate offenses of attempted robbery and attempted felonious restraint under North Dakota law.
Hartson moved to dismiss the felony murder charge, arguing it was not a legally cognizable offense due to what he argued were irreconcilable differences in mens rea (intent) requirements between attempt and the underlying felonies.
The district court denied the motion to dismiss and instructed the jury using "intentional" instead of "knowing" culpability for the underlying felonies.
On appeal, Hartson challenged the modification of the mens rea, the jury instructions, the lack of requirement for a unanimous decision on the underlying predicate offense, and the sufficiency of the evidence for felonious restraint.
The North Dakota Supreme Court affirmed the conviction, holding the district court acted appropriately in each instance.

Issue	Hartson's Argument	State's Argument	Held
Use of "intentional" vs. "knowing" mens rea for underlying felonies	The underlying felonies only require "knowing" conduct, attempt requires intent; thus, inconsistency renders offense non-cognizable	Under N.D.C.C. § 12.1-02-02(4), a higher culpability (intentional) suffices for a charge requiring a lesser one (knowing)	The court did not err in applying "intentional" culpability; greater culpability is legally permissible
Jury instructions on "attempt" and unanimity on predicate offenses	No instruction on attempt or unanimity required for which predicate felony, prejudicing defense	No objection made, and existing law/sister jurisdictions do not require unanimity for predicate felony in felony murder	No obvious error in jury instructions or lack of unanimity requirement
Failure to provide separate verdict forms for each predicate felony	Not providing separate forms confused jury and undermined fairness	Felony murder does not require separate verdict forms for each predicate; underlying felony not an included offense	No error, and thus, no obvious error in verdict forms
Sufficiency of evidence for felonious restraint	Evidence insufficient—the restraint period was short; event did not constitute felonious restraint	Evidence showed physical restraint under terrorizing circumstances and risk of serious injury	Evidence sufficient to sustain conviction

Dominguez v. State, 840 N.W.2d 596 (N.D. 2013) (establishes when attempt crimes require specific intent for underlying offenses)
State v. Borner, 836 N.W.2d 383 (N.D. 2013) (concludes conspiracy to commit unintentional murder is not a cognizable offense)
State v. Swanson, 930 N.W.2d 645 (N.D. 2019) (conspiracy to "knowingly" commit murder not cognizable)
State v. Pemberton, 959 N.W.2d 891 (N.D. 2021) (attempt to knowingly commit murder is not a cognizable offense)
State v. Pendleton, 978 N.W.2d 641 (N.D. 2022) (jury may be instructed on higher intent for attempt crimes if required by the charge)
State v. Anderson, 997 N.W.2d 616 (N.D. 2023) (standards for appellate review of sufficiency of evidence)