IN THE SUPREME COURT OF NORTH DAKOTA
|State of North Dakota,||Supreme Court File No. 20120240|
|Walsh County Criminal No.|
|Esteban F. Dominguez,|
APPEAL FROM AN ORDER DENYING DEFENDANT'S MOTION TO SET ASIDE JURY VERDICT DATED APRIL 25, 2012 ENTERED IN WALSH COUNTY DISTRICT COURT, NORTHEAST JUDICIAL DISTRICT GRAFTON, NORTH DAKOTA THE HONORABLE M. RICHARD GEIGER, PRESIDING.
|Thomas V. Omdahl|
|(ND Bar No. 04971)|
|Omdahl & Morgenstern Law PLLC|
|424 Demers Ave|
|Grand Forks, ND 58201|
|Office: (701) 772-8526|
|Fax: (701) 795-1769|
|Attorney for the Appellant|
|Table of Contents|
|Table of Authorities||iii|
|STATEMENT OF THE ISSUES||1|
|STATEMENT OF CASE||1|
|I. PROCEDURAL DISPOSITION||1|
|II. OPINION BELOW||1|
|II. STATEMENT OF FACTS||1|
|LAW AND ARGUMENT||3|
|STANDARD OF REVIEW||3|
|I. The Defendant was illegally convicted under N.D.C.C. § 12.1-16-01 (b) because this statute should be interpreted so that the victim must have died as a result of the action. As a result this statute cannot be charged under attempt....4|
|II. Because the structure of the statute requires no intent to kill, subdivision (b) of the Murder statute is a strict liability offense and therefore all the elements of the crime must be present in order to be guilty..11|
|TABLE OF AUTHORITIES|
|Bernhardt v. Harrington, 2009 ND 189, 775 N.W.2d 682||4|
|Dickinson v. Mueller, 261 N.W.2d 787 (N.D. 1977)||11|
|Flanagan v. State, 2006 N.D. 76, 712 N.W.2d 602||3|
|Greywind v. State, 2004 ND 213, ¶ 5, 689 N.W.2d 390||4|
|Laib v. State, 2005 ND 187, 705 N.W.2d 845||3|
|Rummer v. State, 2006 ND 216, 722 N.W.2d 528||3|
|State v. Erickstad, 2000 ND 202, 620 N.W.2d 136||5, 13|
|State v. Ford, 377 N.W.2d 125 (N.D. 1985)||3|
|State v. Frolich, 2007 ND 45, 729 N.W.2d 148||6|
|State v. Glass, 2000 ND 212, ¶ 23, 620 N.W.2d 146||13||8, 13, 14, 16|
|State v. Hegland, 355 N.W.2d. 803 (N.D. 1984)||3||8, 13, 14, 16|
|State v. Holte, 2001 ND 133, 631 N.W.2d 595||11||8, 13, 14, 16|
|State v. Johnson, 2001 ND 184, 636 N.W.2d 291||4|
|State v. Knowels, 2002 ND 62, 643 N.W.2d 20||4, 6|
|State v. Lemons, 2004 N.D. 44, 675 N.W.2d 148||3|
|State. v. McLarty, 414 S.W.2d 315, 318 (Mo. App. 1976)||6|
|State v. Olson, 2003 ND 23, 565 N.W.2d 650||12|
|State v. Ripley, 319 N.W.2d 129 (N.D. 1982)||6|
|State v. Schmitz, 559 N.W.2d 701, 1997 Minn. App. LEXIS 124||8, 9, 10|
|State v. Zupetz, 322 N.W.2d 730 (Minn. 1982)||9|
|State. v. McLarty, 414 S.W.2d 315 (Mo. App. 1976)||4|
|Syvertson v. State, 2005 ND 128, 699 N.W.2d 855||4|
|Tweed v. State, 2012 ND 38, 779 N.W.2d 667||4|
Statutes, Rules, Codes
|Minn. Stat. § 609.17 (2012)||10|
|Minn. Stat. § 609.185 (6)(2012)||8|
|N. D. Cent. Code § 29-32.1-14||1|
|N.D. Cent. Code § 12.1-02-02||5, 6, 7, 11, 12|
|N.D. Cent. Code § 12.1-06-01||5|
|N.D. Cent. Code § 12.1-16-01||1, 4, 11, 13|
|N.D. Cent. Code § 12.1-16-02||7|
|N.D. Cent. Code § 12.1-16-03||7|
|N.D. Cent. Code § 14-07.1-06||11|
|N.D. Civ. P. 52 (a)||3|
|N.D. R. App. P. 3(a)||3|
|N.D. R. Crim. P. 33||3|
|N.D. R. Crim. P. 52 (b)||4|
|Merriam-Webster.com. 2011. http://www.merriam-webster.com (8 May 2011).||13|
[¶ 1] The North Dakota Supreme Court has jurisdiction over the appeal of this matter pursuant to N.D. R. App. P. Rule 3(a) and N.D.C.C. § 29-32.1-14.
STATEMENT OF THE ISSUES
I. [¶ 2] Whether the District Court improperly denied the motion to set aside the jury verdict and order a new trial if, as a matter of law, N.D.C.C. § 12.1-16-01 (b) cannot be charged where the victim does not die.
II. Whether "Murder" under N.D.C.C. § 12.1-16-01 (b) is a strict liability offense requiring all elements to be present in order to convict.
STATEMENT OF CASE
[¶ 3] This is a criminal matter on direct appeal from a Northeast Judicial District, Walsh County District Court decision denying the Defendant's motion to set aside the jury verdict by the Honorable Judge M. Richard Geiger.
[¶ 4] Walsh County District Court entered a Memorandum decision and Order denying the Defendant's motion to set aside the jury verdict and order a new trial on April 25, 2012. (Appellant Appx. p. 15).
STATEMENT OF FACTS
[¶ 5] On August 8, 2011 a complaint and statement of probable cause was filed in the Walsh County District Court alleging the Defendant, Esteban Dominguez, committed the crime of Terrorizing, a C Felony in violation of N.D.C.C. § 12.1-17-04. (Appellant Appx. p. 6). An Amended Felony compliant was then filed with the court August 9, 2011 adding Count 2: Attempted murder in violation of 12.1-16-01 and 12.1-06-01, Count 3: Unlawful Possession of a Controlled Substance and Count 4: Unlawful Possession of Drug Paraphernalia. (Appellant Appx. p. 7).
[¶ 6] The pertinent parts of the complaint alleged that on or about August 5, 2011, the Defendant committed the crimes of Terrorizing and Attempted Murder by pointing a gun a the alleged victim and insisting that the victim get into the trunk. (Appellant Appx. p. 6). Further the complaint alleged that the Dominguez fired a rifle approximately four times at the victim as the victim was running away, this constituting a substantial step toward the commission of murder. (Appellant Appx. p. 6). As of the August 9, 2011 complaint filing murder was charged as, "intentionally or knowingly causing the death of another human being. (Appellant Appx. p. 7). The victim did not die nor did any bullets strike him.
[¶ 7] The Defendant entered and maintained pleas of not guilty to all charges in the case and the matter was set on for a three-day jury trial commencing on January 31, 2012. (Appellant Appx. p. 3). Two days prior the trial a second amended complaint was filed adding language under Count 2, "Murder is defined as intentionally or knowingly causing the death of another human being or causing the death of another human being under circumstances manifesting extreme indifference to the value of human life." (Appellant Appx. p. 9) (Underlined text added).
[¶ 8] Trial was held in Walsh County District Court, the honorable Judge Geiger presiding. At the conclusion of the trial, February 2, 2012, the jury returned a verdict of guilty to Counts 1 "Terrorizing" and 2 "Attempted Murder". (Appellant Appx. p. 14).
[¶ 9] On March 20, a motion to set aside the jury verdict was filed with Walsh County asserting the legal issue upon which this appeal is taken. (Appellant Appx. p. 4). Briefly the issue is that as a matter of law, murder under subdivision (b) can only be charged where the victim dies as a result of the actor. Essentially, the alleged victim in this case did not die and therefore subsection (b) of the murder statute cannot be presented to the jury for consideration of guilt even in the context of attempted murder.
LAW AND ARGUMENT
STANDARD OF REVIEW
[¶ 10] "Under Rule 33, N.D. Crim. P., The trial court may grant a new trial 'if required in the interest of justice.' On appeal this Court will not set aside a trial court's denial of a motion for a new trial unless the court has abused its discretion in denying the motion. State v. Ford, 377 N.W.2d 125, 127 (N.D. 1985) (quoting State v. Hegland, 355 N.W.2d. 803 (N.D. 1984). "A trial court abuses its discretion "only when it acts in an arbitrary, unreasonable, or capricious manner, or misinterprets or misapplies the law." State v. Lemons, 2004 N.D. 44, ¶ 18, 675 N.W.2d 148.
[¶ 11] Proceedings on applications for post-conviction relief are civil in nature and governed by the North Dakota Rules of Civil Procedure. Rummer v. State, 2006 ND 216, ¶ 9, 722 N.W.2d 528. The petitioner has the burden of establishing grounds for post-conviction relief. Flanagan v. State, 2006 N.D. 76. ¶ 10, 712 N.W.2d 602. The district court's findings of fact in a post-conviction proceeding will not be disturbed on appeal iunless the are clearly erroneous under N.D.Civ.R.P. 52(a). Laib v. State, 2005 ND 187, ¶ 11, 705 N.W.2d 845. A finding of fact is clearly erroneous if induced by an erroneous view of the law, of no evidence exists to support it, or if the reviewing court is left with a definite and firm conviction a mistake has been made. Bernhardt v. Harrington, 2009 ND 189, ¶ 5, 775 N.W.2d 682.
Tweed v. State, 2012 ND 38, ¶ 15, 779 N.W.2d 667. "Questions of law are fully reviewable on appeal of a post-conviction proceeding." Syvertson v. State, 2005 ND 128, ¶ 4, 699 N.W.2d 855 (quoting Greywind v. State, 2004 ND 213, ¶ 5, 689 N.W.2d 390).
[¶ 12] Finally, this appeal is alternatively founded upon N. D. R. Crim. P. 52 (b), "Obvious Error". "our inquiry is limited under N.D. R. Crim. P. 52 (b) to whether the trail court's actions constituted obvious error." State v. Knowels, 2002 ND 62, ¶ 6, 643 N.W.2d 20. "To establish error, [the defendant] 'has the burden to show (1) error, (2) that is plain, and (3) that affects substantial rights.'" Id at ¶ 7. (quoting State v. Johnson, 2001 ND 184, ¶ 12, 636 N.W.2d 291). "We cannot imagine an error more fundamental than convicting a defendant of a crime when not all of the elements of the crime are present." Knowels, at ¶ 14.
I. The Defendant was illegally convicted under N.D.C.C. § 12.1-16-01 (b) because this statute should be interpreted so that the victim must have died as a result of the action. As a result this statute cannot be charged under attempt.
[¶ 13] As indicated in the second amended complaint, language was added charging the Defendant for Attempted Murder under N.D.C.C. § 12.1-16-01(b). (Appellant Appx. p. 9). Charging "attempt" under subdivision (b) is very important to the legal issue at hand as will be discussed below. N.D.C.C. § 12.1-16-01(b) finds guilt, "if the person: (b) Causes the death of another human being under circumstances manifesting extreme indifference to the value of human life" Id. (emphasis added).
[¶ 14] The Defendant's fundamental contention is that the language of this statute prohibits the State from charging a "subdivision (b)" murder when the victim does not die as a result of the action. Basically, subdivision (b) cannot be charged as an attempt crime.
[¶ 15] The statute central to this case is N.D.C.C. § 12.1-02-02 (2), "Liability and Culpability". This statute read, "If a statute or regulation thereunder defining a crime does not specify any culpability and does not provide explicitly that a person may be guilty without culpability, the culpability that is required is willfully." Id.
[¶ 16] In State v. Erickstad, the Court addressed the application of N.D.C.C. § 12.1-02-02(2) to subdivision (b) of 12.1-16-01 and determined that subdivision (b) is a crime of general intent. State v. Erickstad, 2000 ND 202, ¶ 24-5, 620 N.W.2d 136.
[¶ 17] As a general rule, however, a statute defining a crime is to be construed in the light of the common law and the existence of a criminal intent is to be regarded as essential, even when not in terms required and before a statute will be construed as to eliminate 'intent' as an element of an offense, the legislative intent to do so must be clearly apparent. It has been held, however, that a criminal intent is not an element of the offense where the commission of an act is made a crime without any express reference to intent. Whether criminal intent is an element of a statutory crime depends on the intent of the legislature, and is a matter of statutory construction.
State v. Ripley, 319 N.W.2d 129, 133 (N.D. 1982) (quoting State. v. McLarty, 414 S.W.2d 315, 318 (Mo. App. 1976). State v. Knowels further explains, "While the legislature can enact strict liability crimes, those offense must be explicitly identified. Id at ¶ 12. This case law however is perplexing to this case when charging subdivision (b) out in an "attempt" capacity. Erickstad was a case where the victims actually died as a result of the acts.
[¶ 18] N.D.C.C. § 12.1-06-01 defines Criminal Attempt. "A person is guilty of criminal attempt if, acting with the kind of culpability otherwise required for the commission of a crime, he intentionally engages in conduct which, in fact, constitutes a substantial step toward commission of the crime." Id. "the culpability level of the substantial step conduct is always elevated to 'intentionally'..." State v. Frolich, 2007 ND 45, ¶ 24, 729 N.W.2d 148. Criminal Attempt is a specific intent crime.
[¶ 19] Applying the elevated specific intent culpability of "intentionally" to subdivision (b) would seemingly require that State prove that the acts constituting a substantial step were carried out intentionally by the actor. This however, would only serve to require the state to prove the actor intentionally engage in conduct that constitutes a substantial step toward placing a victim under circumstances manifesting extreme indifference to the value of human life. It does not necessarily extend to conduct that show substantial steps towards "causing" the victim's death. If true, this would allow attempted murder under subdivision (b) to be charged out where no substantial step was taken to cause a death or attempt to cause a death, only that the actor intentionally took substantial steps to place the victim under circumstances manifesting extreme indifference to the value of human life. Essentially murder could be committed where there was neither intent to kill nor intent to take substantial steps toward killing.
[¶ 20] The plain language of subdivision (b) contains no intent element but Erickstad would suggest that N.D.C.C. § 12.1-02-02(2) should be implemented and "willfully" assigned to the statute. However, two conflicts arise under this scenario.
[¶ 21] The first is how to apply "willfully" to the statute. Does "willfully" mean the actor willfully placed another in circumstances manifesting extreme indifference to human life and the victim happened to die? Or does it mean that, while the victim was in conditions manifesting and extreme indifference to human life, the actor "willfully" causes their death?
[¶ 22] If it is the former it creates the scenario where the actor does not "willfully" intend to kill the victim only that the victim dies after have been willfully placed under circumstances that manifest extreme indifference to human life. Which is logical if, and only if, the victim dies. This appears consistent when looking at the Manslaughter and Negligent Homicide statutes, N.D.C.C. §§ 12.1-16-02 and 03 respectively.
[¶ 23] At best application of "willfully" to this statute only acts to define that the actor "willfully" placed a victim under circumstances manifesting an extreme indifference to human life. Otherwise the actor, or even a third party, could recklessly, negligently or even excusably cause the death of the victim after the victim had been placed under conditions manifesting extreme indifference to human life by the original actor and thereby be guilty of murder.
[¶ 24] If it were the latter, "willfully" causes the death of victim, "willfully" would then trigger the elements of subdivision (a) Murder, (intentionally or knowingly causes the death of another human being), rendering no need to charge the crime out under subsection (b), because indeed the definition of "willfully" under 12.1-02-02 (1)(e) reads that the actor engages in the conduct "knowingly".
[¶ 25] A Minnesota State case involving a murder statute with very similar language has been interpreted and held that a crime founded on general intent not specific intent, cannot be prosecuted for attempt because, "(a) problem arises from a contradictory joinder of elements created by linking the anticipatory crime of attempt (which requires specific intent) to domestic abuse murder (which requires general intent). State v. Schmitz, 559 N.W.2d 701, 703-4, 1997 Minn. App. LEXIS 124.
[¶ 26] In Schmitz the Defendant was charged under Minnesota's Domestic Murder Rule § 609.185 (b)(1996), now re-codified as Minn. Stat. 609.185 (6); "causes the death of a human being while committing domestic abuse, when the perpetrator has engaged in a past pattern of domestic abuse upon the victim or upon another family or household member and the death occurs under circumstances manifesting an extreme indifference to human life ". See generally Schmitz. In Schmitz the Defendant was charged with attempt to commit the "domestic murder rule" but, as in this case, the victim did not die. See generally Schmitz. The allegation was that the victim had suffered a brain injury as the result of an assault by the Defendant. Id. The State's theory was that because the assault taking place under conditions manifesting extreme indifference to human life proved that the requisite element of attempt had been met sufficient to charge the crime out as attempted murder. Id.
[¶ 27] Specific intent that would give rise to an attempt to commit a certain crime is the intent to commit that particular crime." State v. Zupetz, 322 N.W.2d 730, 735 (Minn. 1982). Here, the particular crime involved is domestic abuse murder. The state argues that because Schmitz assaulted Raner "under circumstances manifesting an extreme indifference to human life," he necessarily specifically intended to cause Raner's death. But we fail to see how the "extreme indifference" language is helpful to show specific intent to commit domestic abuse murder. The extreme indifference element is an environmental element; it describes surrounding circumstances unrelated to intent. Moreover, any degree of indifference suggests a lack of concern and is related to negligence or recklessness. Negligence involves unawareness of a risk that should be known whereas recklessness involves disregard of a known risk. Id. at 733 (quoting 2 Charles E. Torcia, Wharton's Criminal Law § 168 at 272 (14th ed. 1979)). Neither includes specific intent. Thus, the supreme court has determined that reckless disregard of human life is not the equivalent of a specific intent to kill. Id. at 734 (quoting Rollin M. Perkins, Criminal Law at 573-74 (2d ed. 1969)).
Adopting the supreme court's reasoning in Zupetz, one may reasonably conclude that Schmitz acted in a manner manifesting extreme indifference to human life. He may also have intended to kill Raner (although the state did not charge him with attempted intentional murder). But it makes no sense to say that he specifically intended to kill her by being extremely indifferent to human life. Although Raner's injuries were caused by an assault that occurred under circumstances manifesting an extreme indifference to human life, the indifference element does not furnish a mental state consistent with the specific intent required for an attempt.
We conclude as a matter of law that the crime of attempted domestic abuse murder cannot be committed under the applicable statutes as enacted. Therefore, we hold that Schmitz's conviction for attempted domestic abuse murder must be reversed and his conviction and sentence for that offense vacated.
Schmitz, at 704.
[¶ 28] In general the language of this Minnesota Domestic Murder Rule is similar to that of North Dakota's "subdivision (b)" murder rule in that it is predicated on a death occurring under circumstances manifesting extreme indifference to human life.
[¶ 29] Similarly Minnesota's Attempt statute is similar to North Dakota's, "Whoever, with intent to commit a crime, does an act which is a substantial step toward, and more than preparation for, the commission of the crime is guilty of an attempt to commit that crime" Minn. State. § 609.17 (2012).
[¶ 30] The problem that arises in this case occurs where Dominguez was charged with both attempted murder under subdivision (a) and attempted murder under subdivision (b). Two jury instructions were given on each respective subdivision. (Appellant Appx. p. 13). However only one jury verdict was returned (Appellant Appx. p. 14). If the court determines that 12.1-16-01, subdivision (b), can permissibly be charged as an attempt crime then there is likely no defect in the jury instructions and possibly no defect verdict form. However, if the court rules that subdivision (b) is not an attemptable offense or that because of its strict liability nature all elements, including death must be present to convict, the verdict form that was returned does not specify which of the two subdivisions. There is then no way to assure the verdict on either subdivision (a) or (b) was reached unanimously.
[¶ 31] Dominguez petitions the court here to adopt the Schmitz reasoning as a matter of law because although the state, using attempt, may have been able to show that even if Dominguez took substantial steps to place the victim under circumstances manifesting extreme indifference to human life that act does not extend to even infer culpability required to show that Dominguez intended to kill the victim.
II. Because the structure of the statute requires no intent to kill, subdivision (b) of the Murder statute is a strict liability offense and therefore all the elements of the crime must be present in order to be guilty.
[¶ 32] It is asserted here that, although the words "strict liability crime" are not contained in subdivision (b), the logical structure of the statute does comport with the application of N.D.C.C. § 12.1-02-02(2) in defining that subsection (b) of N.D.C.C. § 12.1-16-01 is not a strict liability crime. The misapplication of this explanation comes where the offense involved is that of a strict liability crime. Strict liability offenses inherently lack intent as an element of the offense because they in fact require no intent to commit the offense. It only requires a showing that the actions satisfy all the elements of the statute. While N.D.C.C. § 12.1-02-02(2) does define non-strict liability offenses where the statute is silent as to the intent, it is not applicable to strict liability offenses, out of simple logic, where no intent is required.
[¶ 33] The rule limiting N.D.C.C. § 12.1-02-02 (2) to only Title 12.1 statutes originated in Dickinson v. Mueller, 261 N.W.2d 787, 789 (N.D. 1977). The reasoning offered was that the preceding statute, 12.1-02-02(1) begins with, "For the purposes of this title" Mueller has little explanation for this assertion short of suggesting that because subdivision (1) begins with, "For the purposes of this title", it the follows that subdivision (2) is similarly constrained within Title 12.1. However, subdivision (1), a-e is merely a list of definitions for various levels of culpability. It says nothing about extending its limiting language to other statutes. It only speaks to definitions of conduct in which a person may have engaged. Further 12.1-02-02 (2), subdivision (2), reads, "If a statute or regulation thereunder" (emphasis added). This language would suggest the opposite of the Mueller case in that it speaks to both statutes and regulations. Arguably "regulations" infers application to codes that may fall outside the Title 12.1 scope and certainly lacks the limiting language contained in subdivision (1).
[¶ 34] This is brought to the Court's attention to support the argument that there may well be strict liability offenses in both statutes and regulations, which although they do not literally contain the words "strict liability", may in fact have a strict liability level of culpability.
[¶ 35] Case law has defined such crimes in other strict liability matters. "Violation of a domestic violence protection order, punishable under N.D.C.C. § 14-07.1-06, which does not specify a culpability requirement, 'is a strict liability offense for which no proof of intent is required.'" State v. Olson, 2003 ND 23, ¶ 11, 565 N.W.2d 650 (quoting State v. Holte, 2001 ND 133, ¶10, 631 N.W.2d 595).
[¶ 36] Similarly N.D.C.C. § 12.1-16-01 (1)(c), the "felony murder rule", is silent as to intent however, using the reasoning in Erickstad, it would stand that because it is silent, the required proof of intent is that of willfully. However under subdivision (c) "willfully" is not required as an element because that statute turns on whether the victim dies during commission of an underlying eligible offense (i.e. treason, robbery, burglary, kidnapping, felonious restraint, arson, gross sexual imposition, a felony offense against a child or escape). See N.D.C.C. § 12.1-16-01 (1)(c).
[¶ 37] More logically if subdivision (c), "Felony murder rule", is a strict liability offense, N.D.C.C. § 12.1-02-02(2) is unnecessary in defining the culpability level. This statute should be inapplicable where the offense is a strict liability one. Logically subdivision (b) operates in the same manner. Case law has held that subdivision (b) is a general intent crime. See Erickstad. Subdivision (b) may well be however merely a strict liability offense in which all essential elements of the offense must be present.
[¶ 38] Explicitly is defined as, "Fully revealed or expressed without vagueness" "Explicitly" Merriam-Webster.com. 2011. http://www.merriam-webster.com (12 July 2012). The "explicitly" caveat contained in this statute does not comport with many other "strict liability" crimes. In relation to DUI crimes the Supreme Court has held that it is a strict liability offense and that district courts are not in error when refraining from instructing juries as to "willfully" committing the offense. "We conclude that because DUI is a strict liability, the willful culpability requirement of N.D.C.C. § 12.1-02-02(2) does not apply and therefore the district court had no obligation to instruct the jury as to any level of culpability. State v. Glass, 2000 ND 212, ¶ 23, 620 N.W.2d 146. It is asserted that a statute may explicitly be a strict liability offense without expressly containing "strict liability" language.
[¶ 39] Dominguez petitions the court to reconsider the application of N.D.C.C. § 12.1-02-02 (2) to statues which may be, by their structure and language, explicitly "strict liability" yet may not contain those express words in their definition. In those rare cases N.D.C.C. § 12.1-02-02 (2) may not be applicable to inform an otherwise silent culpability standard.
[¶ 40] Subdivision (b) cannot be charged out under attempt because the specific intent element does not comport with the general intent element of subdivision (b).
[¶ 41] Alternatively subdivision (b) of North Dakota's murder rule is a strict liability offense by the nature of its construction and all elements must be present in order to be guilty of committing the offense including the death of the victim. Here the victim did not die and as a matter of law Dominguez could not have been found guilty of the crim. The Appellant asks the court to reverse the district court's decision to deny the motion to set aside the jury verdict and Direct the Court to order a new trial in the matter.
|Thomas V. Omdahl|
|Omdahl & Morgenstern Law PLLC|
|424 Demers Ave|
|Grand Forks, ND 58201|
|Attorney for the plaintiff|