Filed 8/13/15 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
State of North Dakota, Plaintiff and Appellee
v.
Joshua James Clark, Defendant and Appellant
No. 20140405
Aрpeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Bruce B. Haskell, Judge.
AFFIRMED.
Opinion of the Court by McEvers, Justice.
Pamela A. Nesvig, Assistant State’s Attorney, P.O. Box 5518, Bismarck, N.D. 58506-5518, for plaintiff and appellee.
Charles A. Stock, P.O. Box 605, Crookston, MN 56716-0605, for defendant and appellant.
State v. Clark
No. 20140405
McEvers, Justice.
[¶1] Joshuа Clark appeals from a criminal judgment entered after a jury found him guilty of conspiracy to commit murder. Clark argues there was insufficient evidence to establish he conspired or agreed with another to commit murder. Viewed in the light most favorable to the jury verdict, we conclude there is sufficient evidence to support the verdict, and we affirm the judgment.
I
[¶2] Clark and Theo Crowe were acquaintances and co-workers at a construction business in Bismarck. On May 11, 2013, they were drinking together at Clark’s apartment in Bismarck. In an interview with law enforcement officers, Clark stated he and Crowe were upset about the women in their lives and statements were made to the effect “they were so mad they could kill somebody.” Clark testified at trial he did not specifiсally recall making that statement, but he “might have said it,” and if he did, he was not serious and “it would’ve just been two individuals blowing off steam.”
[¶3] After a confrontation between Crowe and Clark’s roommate at Clark’s apartment, Clark and Crowe got a ride to Crowe’s apаrtment in Bismarck. According to Crowe’s neighbor, Paul Groce, he encountered Crowe and Clark outside Crowe’s apartment, and when he saw Crowe carrying a hammer in a striking position like he was going to use it on him, Groce walked away from the situation and went inside his apartment and locked his door. Groce testified he later saw Crowe and Clark leave Crowe’s apartment and “they seemed like they were intoxicated and they wanted to fight or something like that.”
[¶4] Clark testified they left Crowe’s apartment tо get some marijuana, and they saw John Swain, an individual he had never met, at a nearby park. Clark testified Crowe invited Swain back to Crowe’s apartment, where the three men listened to music and drank for about ten to fifteen minutes before Crowe got up аnd hit Swain in the head with a hammer. Clark testified he was “shocked” by the incident and Crowe hit Swain four or five more times and then told Clark “it’s your turn now.” Clark testified he believed Swain was already dead and he hit Swain once in the head because he was scared of rеpercussions if he did not follow Crowe’s directions. Clark testified that after he hit Swain, he gave the hammer back to Crowe, who continued to hit Swain at least five more times. Clark testified he helped Crowe move Swain’s body to a bathtub, he started to wipe uр some blood, he helped amputate Swain’s legs, and he helped move the body into a garage.
[¶5] According to Clark, he stayed overnight at Crowe’s apartment, and a friend picked him up the next morning. Clark testified he later disposed of the murder wеapon, his work hammer, but he did not help Crowe burn Swain’s clothing or cell phone, he did not try to amputate Swain’s head, he did not help load Swain’s body into a pickup truck several days later, and he did not go with Crowe to bury Swain’s body in Montana. Clark also testified he did not see Crowe again after leaving Crowe’s apartment.
[¶6] The State charged both Crowe and Clark with conspiracy to commit murder under N.D.C.C. §§ 12.1-16-01(1)(b) and 12.1-06-04, alleging they agreed to intentionally or knowingly cause Swain’s death and committed overt acts in furtherаnce of the conspiracy. At Clark’s trial, Crowe refused to testify against Clark. Clark claimed there was no evidence he agreed or conspired with Crowe to murder Swain and testified he was not serious about his statement that he was so mad he could kill sоmeone. A jury found Clark guilty of conspiracy to commit murder.
II
[¶7] Clark argues the evidence was insufficient to prove beyond a reasonable doubt he conspired to commit murder because there was no evidence of an agreement betwеen him and Crowe to kill Swain or anyone. Clark claims he was not serious about his statement that he was so mad he could kill someone, and because Crowe refused to testify at trial, there was no evidence to contradict his testimony. Clark argues his statement he was so mad he could kill someone, if he made the statement, was made under the influence of alcohol and was in reference to him being upset about his girlfriend. He argues any inference of an agreement from that statement is speсulative. He also argues Crowe killed Swain, and he only became involved after Swain was dead. Clark testified that although he helped Crowe dismember Swain’s body, clean up, and dispose of evidence, those acts were done after the alleged conspiracy was terminated.
[¶8] In
State v. Addai
,
In an appeal challenging the sufficiency of the evidence, we look only to the evidence and reasonable inferences most favorable to the verdict to ascertain if there is substantial evidence to warrant the conviction. A conviction rests upon insufficient evidence only when, after reviewing the evidence in the light most favorable to the prosecution and giving the prosecution the benefit of all inferences reasonably to be drawn in its favor, no rational fact finder could find the defendant guilty beyond a reasonable doubt. In considering a sufficiency of the evidence claim, we do not weigh conflicting evidence, or judge the credibility of witnesses. A verdict based on circumstantial evidence carries the same presumption of correctness as other verdicts. A conviction may be justified on circumstantial evidence аlone if the circumstantial evidence has such probative force as to enable the trier of fact to find the defendant guilty beyond a reasonable doubt.
[¶9] The State charged Clark with conspiracy to commit murder under N.D.C.C. §§ 12.1-16-01(1)(b) and 12.1-06-04. Under N.D.C.C. § 12.1-16-01(1)(b), a person is guilty of murder if the person causes the death of another human being under circumstances manifesting an extreme indifference to the value of human life. Section 12.1-06-04, N.D.C.C., defines a criminal conspiracy in North Dakota and provides, in part:
1. A person cоmmits conspiracy if he agrees with one or more persons to engage in or cause conduct which, in fact, constitutes an offense or offenses, and any one or more of such persons does an overt act to effect an objective of the conspiracy. The agreement need not be explicit but may be implicit in the fact of collaboration or existence of other circumstances.
. . . .
3. A conspiracy shall be deemed to continue until its objectives are accomplished, frustrated, or abandoned. “Objectives” includes escape from the scene of the crime, distribution of booty, and measures, other than silence, for concealing the crime or obstructing justice in relation to it. A conspiracy shall be deemed abandoned if no overt act to effect its objectives has been committed by any conspirator during the applicable period of limitations.
[¶10] Under N.D.C.C. § 12.1-06-04, a criminal conspiracy consists of an agreement to cоmmit an offense and an overt act to effect the offense.
State v. Cain
,
[¶11] Bismarck police officer Shaun Burkhartsmeier testified that Clark made a statement tо him that on the day Swain was killed, both Clark and Crowe were upset and statements were made to the effect “they were so mad they could kill somebody.” According to Clark, he and Crowe discussed the possibility of killing someone and Crowe discussed the idea of a dark alley and using a hammer. Officer Burkhartsmeier testified Clark told him that before Crowe handed him the hammer, Crowe told him “not to bitch out and you’re going to do your part.” At trial, Clark testified Crowe gave him the hammer and said “it’s your turn now.” Officer Burkhartsmeier testified that Clаrk also told him the plan was to cut the body up further, but it was too difficult. Dawnie Crowe, Theo Crowe’s wife, testified Crowe told her that his friend helped him kill Swain with a hammer, and their plan was to never speak to each other again. Bismarck police offiсer Mark Gaddis testified that Clark initially told him Crowe took out a shotgun, pointed it at him, and threatened him if he did not help get rid of Swain’s body, but at trial, Clark testified he never actually saw Crowe’s shotgun. Officer Gaddis testified Clark also initially told him he did not assist Crowe in cutting off Swain’s legs, but lаter admitted to helping Crowe. Officer Gaddis also testified that when Clark initially spoke to him, Clark told him the hammer used in the murder belonged to Crowe, but Clark later acknowledged his hammer had been used to kill Swain, and he had buried it in the concrete footings of a house.
[¶12] Clark’s changing and inconsistent versions of the events leading up to Swain’s death raise credibility issues about his testimony that he was not serious about being so mad he could kill someone. In considering a sufficiency of the evidence claim, we do not reweigh conflicting evidence or judge the credibility of witnesses.
Addai
,
[¶13] Viewing the evidence in the light most favorable to the verdict, we conclude a rational fact finder could find the circumstantial evidence and Clark’s statement about being so mad he could kill someone established an implicit agreement with Crowe to commit murder. Under this Court’s deferential standard of review of sufficiency of the evidence claims, we conclude there is sufficient circumstantial evidence to support the jury verdict.
[¶14] Relying on federal cases, Clark argues that there must be direct evidence the parties agreed to commit murder and that conduct after Swain’s death is not relevant to the conspiracy.
See
Grunewald v. United States
,
04.
III
[¶15] We affirm the judgment.
[¶16] Lisa Fair McEvers
Dale V. Sandstrom
Daniel J. Crothers
Benny A. Graff, S.J.
Gerald W. VandeWalle, C.J.
[¶17] The Honorable Benny A. Graff, S.J., sitting in place of Kapsner, J., disqualified.