I N T H E S U P R EM E C O U R T

STATE OF NORTH DAKOTA

2024 ND 124

State of North Dakota, Plaintiff and Appellee

v.

Bradley James Vervalen, Defendant and Appellant

No. 20230286

Appeal from the District Court of Rolette County, Northeast Judicial District, the 

Honorable Anthony S. Benson, Judge.

AFFIRMED.

Opinion of the Court by McEvers, Justice.

Brian D. Grosinger, State’s Attorney, Rolla, ND, for plaintiff and appellee.

Kiara C. Kraus-Parr, Grand Forks, ND, for defendant and appellant.
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State v. Vervalen

No. 20230286

McEvers, Justice.

[¶1] Bradley Vervalen appeals from a criminal judgment entered after a jury found him 

guilty of burglary and attempted murder. Vervalen argues the district court erred by failing 

to instruct the jury on voluntary intoxication and by providing attempted murder 

instructions that deviated from the murder statute, creating a nonexistent crime. We affirm.

I 

[¶2] The State charged Vervalen with burglary and attempted murder. In January 2023, 

the district court held a trial where the jury heard testimony that Vervalen unlawfully 

entered the home of the mother of their children and attacked her boyfriend, including 

stabbing the boyfriend multiple times with a knife. The jury found Vervalen guilty of 

burglary and attempted murder. The court sentenced Vervalen and entered judgment.

II

[¶3] Vervalen argues the district court erred by failing to instruct the jury on his voluntary 

intoxication. Vervalen concedes he did not object to the proposed instructions or request 

an intoxication instruction be given to the jury. Therefore, we review only for obvious error 

under N.D.R.Crim.P. 52(b). State v. Erickstad, 2000 ND 202, ¶ 18, 620 N.W.2d 136. “To 

demonstrate obvious error, the defendant must show (1) an error, (2) that was plain, and 

(3) affected his substantial rights.” State v. Kollie, 2023 ND 152, ¶ 4, 994 N.W.2d 367. The 

defendant has the burden to show he was prejudiced from the alleged error:

In analyzing whether obvious error has occurred, we examine the 

entire record and the probable effect of the alleged error in light of all the 

evidence. In order to affect “substantial rights,” an error must have been 

prejudicial, or affected the outcome of the proceeding. The burden is upon 

the defendant to show the alleged error was prejudicial. An alleged error does 

not constitute obvious error “unless there is a clear deviation from an 

applicable legal rule under current law.” Even if the defendant meets his 

burden of establishing obvious error affecting substantial rights, the 

determination whether to correct the error lies within the discretion of the 

appellate court, and the court should exercise that discretion only if the error 

seriously affects the fairness, integrity, or public reputation of judicial 

proceedings.
2

Erickstad, at ¶ 22 (citations omitted).

[¶4] In support of his argument, Vervalen cites N.D.C.C. § 12.1-01-03(1)(e), which 

provides that an “[e]lement of an offense” includes “[t]he nonexistence of a defense as to 

which there is evidence in the case sufficient to give rise to a reasonable doubt on the 

issue.” Vervalen contends because it is undisputed he was intoxicated at the time of the 

offenses, the State was required to prove his intoxication did not prevent him from forming 

the required culpability, and the district court was required to instruct the jury on this 

“essential element.”

[¶5] Voluntary intoxication, however, “is not a defense to a criminal charge.” N.D.C.C. 

§ 12.1-04-02(1). “Evidence of intoxication is admissible whenever it is relevant to negate 

or to establish an element of the offense charged.” Id. Therefore, while the State was 

required to prove culpability, see N.D.C.C. § 12.1-01-03(1)(c), it was not required to prove 

an absence of intoxication. Vervalen was allowed to present, and did present, evidence of 

his intoxication. We conclude the district court did not err in instructing the jury because 

voluntary intoxication is not a defense to the charges and Vervalen did not otherwise 

request an instruction on voluntary intoxication. Further, Vervalen was not prejudiced by 

the lack of intoxication instruction because he was not prevented from presenting evidence 

of his intoxication or making a closing argument that he did not form the requisite 

culpability due to being intoxicated. We conclude Vervalen has failed to show the court 

committed obvious error.

III

[¶6] Vervalen argues the attempted murder instructions unlawfully deviated from the 

murder statute, creating a crime that the Legislature did not authorize.

[¶7] The State charged Vervalen with attempted murder under N.D.C.C. §§ 12.1-06-01 

and 12.1-16-01. Under N.D.C.C. § 12.1-06-01(1), “A person is guilty of criminal attempt 

if, acting with the kind of culpability otherwise required for commission of a crime, he 

intentionally engages in conduct which, in fact, constitutes a substantial step toward 

commission of the crime.” “A ‘substantial step’ is any conduct which is strongly 

corroborative of the firmness of the actor’s intent to complete the commission of the 

crime.” Id. Under N.D.C.C. § 12.1-16-01(1)(a), a person is guilty of murder if he 

“[i]ntentionally or knowingly causes the death of another human being.” In Pemberton v. 

State, 2021 ND 85, ¶ 13, 959 N.W.2d 891, we concluded that an attempted “knowing” 
3

murder is a non-cognizable offense. Therefore, the State “must prove the accused had an 

intent to kill for a defendant to be convicted of attempted murder.” Id. at ¶ 14. Accordingly, 

contrary to Vervalen’s argument, attempted intentional murder is a criminal offense. Id.; 

N.D.C.C. §§ 12.1-06-01(1), 12.1-16-01(1)(a).

[¶8] To the extent Vervalen challenges the attempted murder instructions, we conclude 

he failed to preserve the issue for appellate review. Vervalen’s counsel specifically 

objected to the proposed final jury instructions because they contained a “knowing” 

culpability—in addition to the “intentional” culpability—citing Pemberton. The district 

court agreed with Vervalen that the “knowingly” language should be omitted from the jury 

instructions. The final instructions stated, “A person is guilty of murder if the person 

intentionally causes the death of another human being.” The essential elements of 

attempted murder in the final instructions required that Vervalen “[i]ntentionally engaged 

in conduct which constituted a substantial step toward intentionally causing the death of 

another human being.” When asked whether he had any other objections to these 

instructions, Vervalen’s counsel stated, “No, Your Honor. That was it.” “A party waives 

an error when the party is given the opportunity to address it and intentionally relinquishes 

the opportunity.” State v. Studhorse, 2024 ND 110, ¶ 25. Therefore, Vervalen has waived 

this issue.

IV

[¶9] The criminal judgment is affirmed.

[¶10] Jon J. Jensen, C.J. 

Daniel J. Crothers 

Lisa Fair McEvers 

Jerod E. Tufte 

Douglas A. Bahr