IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2021 ND 55

State of North Dakota, Plaintiff and Appellee

v.

Tyler Richter, Defendant and Appellant

No. 20200351

Appeal from the District Court of Burleigh County, South Central Judicial 

District, the Honorable Douglas A. Bahr, Judge.

REVERSED AND REMANDED.

Opinion of the Court by VandeWalle, Justice.

Julie A. Lawyer, Burleigh County State’s Attorney, Bismarck, ND, for plaintiff 

and appellee; submitted on brief.

Jackson J. Lofgren, Bismarck, ND, for defendant and appellant; submitted on 

brief.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

MARCH 24, 2021 

STATE OF NORTH DAKOTA
1

State v. Richter

No. 20200351

VandeWalle, Justice.

[¶1] Tyler Richter appealed from a criminal judgment entered after he pled 

guilty to the charge of luring minors by computers and conditionally pled guilty 

to the charge of attempted promotion of obscenity to minors. Richter reserved 

the right to appeal the district court’s denial of his motion to dismiss the charge 

of attempted promotion of obscenity to minors. He argues attempted promotion 

of obscenity to minors is not a cognizable offense. We reverse the criminal 

judgment and remand to allow Richter to withdraw his guilty plea to the 

attempt offense and dismiss the attempt charge. 

I

[¶2] Richter was charged with luring minors by computers or other electronic 

means, a class C felony, and attempted promotion of obscenity to minors, a 

class C felony. 

[¶3] Richter moved to dismiss the charge of attempted promotion of obscenity 

to minors, arguing it is not a legally cognizable offense and a person cannot be 

charged with an offense that does not exist. Richter argued there is an 

inconsistency in the elements of the criminal attempt and promotion of

obscenity to minors offenses which is impossible to rectify. He claimed attempt 

requires the actor have an intent to complete the commission of the underlying 

crime, promoting obscenity only requires the actor to act recklessly which does 

not require an intent to commit a particular objective, and a person cannot 

intend to commit an offense that can be committed without any intent. The 

State opposed Richter’s motion. 

[¶4] The district court denied Richter’s motion to dismiss. The court 

explained the issue raised was whether a person can intentionally engage in 

conduct that recklessly promotes obscene material to a minor. The court 

concluded the word “recklessly” includes intentional conduct, a person can 
2

intend to or consciously act “recklessly,” and therefore a person can be found 

guilty of attempted promotion of obscenity to minors.

[¶5] Richter pled guilty to the charge of luring minors by computers or other 

electronic means. He conditionally pled guilty to the charge of attempted 

promotion of obscenity to minors and reserved the right to appeal the district 

court’s denial of his motion to dismiss. Criminal judgment was entered.

II

[¶6] On appeal Richter argues, as he did in the district court, the crime of 

attempted promotion of obscenity to minors is not a cognizable offense and his 

conviction must be reversed. He claims the offense of promotion of obscenity to 

minors only requires that a person recklessly promote material that is harmful 

to minors, and a person cannot attempt to commit a crime that only requires

reckless culpability.

[¶7] The interpretation of a statute is question of law, which is fully 

reviewable on appeal. Dominguez v. State, 2013 ND 249, ¶ 11, 840 N.W.2d 596.

[¶8] Richter was charged with attempted promotion of obscenity to minors 

under N.D.C.C. §§ 12.1-27.1-03(1) and 12.1-06-01. The criminal attempt 

statute, N.D.C.C. § 12.1-06-01(1), states:

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. 

Factual or legal impossibility of committing the crime is not a 

defense, if the crime could have been committed had the attendant 

circumstances been as the actor believed them to be.

The relevant portion of the promotion of obscenity statute, N.D.C.C. § 12.1-

27.1-03(1), states, “It is a class C felony for a person, knowing of its character, 

to recklessly promote to a minor any material or performance which is harmful 

to minors[.]”
3

[¶9] “The crime of attempt does not exist in the abstract, but rather exists 

only in relation to other offenses; a defendant must be charged with an attempt 

to commit a specifically designated crime, and it is to that crime one must look 

in identifying the kind of intent required. . . . It is not enough to show that the 

defendant intended to do some unspecified criminal act.” State v. Stensaker, 

2007 ND 6, ¶ 9, 725 N.W.2d 883 (quoting 2 Wayne R. LaFave, Substantive 

Criminal Law § 11.3(a) (2d ed. 2003)). This Court has previously considered 

whether certain offenses may be used as the underlying charge for an attempt 

offense. See Dominguez, 2013 ND 249, ¶ 22 (holding attempted murder under 

N.D.C.C. §§ 12.1-06-01 and 12.1-16-01(1)(b) is not a cognizable offense).

[¶10] Our attempt statute is derived from the identical attempt provision of 

the proposed Federal Criminal Code. See Stensaker, 2007 ND 6, ¶ 9; see also

Final Report of the Nat’l Comm’n on Reform of Fed. Criminal Laws § 1001

(1971). We may look to the history of the proposed federal code for guidance in 

interpreting our statute. See Stensaker, at ¶ 9.

[¶11] The Working Papers for the Proposed Federal Code explained the 

attempt provision “is explicit that, except for the intentional conduct 

constituting the substantial step, the requisite culpability is that provided for 

in the definition of the offense. Not only is such a formulation more precise, but 

also it has the virtue of emphasizing the fact that in the proposed new Code we 

recognize, by precise definition and use of terms, that different elements of a 

crime may require different kinds of culpability.” I Working Papers of the Nat’l 

Comm’n on Reform of Fed. Criminal Laws 355 (1970). 

[¶12] We have held that the accused must have an intent to complete the 

commission of the underlying crime to be convicted of criminal attempt under 

N.D.C.C. § 12.1-06-01. Dominguez, 2013 ND 249, ¶ 12. “Implicit in the notion 

of attempt is the requirement that whatever the person is doing is being done 

with the purpose of committing a crime. . . . [The attempt provision] makes this 

requirement explicit by requiring that the conduct be intentionally engaged in 

but otherwise with the culpability required for the offense.” I Working Papers 

of the Nat’l Comm’n on Reform of Fed. Criminal Laws 354 (1970). 
4

[¶13] In Stensaker, 2007 ND 6, ¶ 7, this Court considered whether jury 

instructions adequately informed the jury of the law for the offense of attempt 

to manufacture methamphetamine. We explained the underlying crime of 

manufacturing a controlled substance required a person to willfully 

manufacture a controlled substance; willfully encompasses three culpability 

levels: “intentionally, knowingly, or recklessly;” and a person is guilty if he is 

found to have performed any act that constitutes manufacturing intentionally, 

knowingly, or recklessly. Id. at ¶¶ 10-11. In discussing the essential elements 

of the attempt offense, we explained:

[T]he State alleged that the substantial step was “obtaining and 

preparing precursors for the manufacture of methamphetamine.” 

Therefore, if a jury could find that it was Stensaker’s purpose to 

obtain and prepare the precursors and that he did so with the 

requisite willful culpability to manufacture methamphetamine, he 

would be guilty of criminal attempt to manufacture 

methamphetamine. He would not be guilty if he acted “knowingly 

or recklessly” in obtaining and preparing the precursors, even 

though he did so with the required culpability to manufacture 

methamphetamine, because “[u]nder the prevailing view, an 

attempt . . . cannot be committed by recklessness or negligence or 

on a strict liability basis, even if the underlying crime can be so 

committed.” 2 LaFave, supra, § 11.3.

Stensaker, at ¶ 13.

[¶14] Under N.D.C.C. § 12.1-27.1-03(1), a person is guilty of promoting 

obscenity to minors if the person, knowing of the character of the material, 

recklessly promotes to a minor any material which is harmful to minors. A 

person engages in conduct “recklessly” if he engages in the conduct “in 

conscious and clearly unjustifiable disregard of a substantial likelihood of the 

existence of the relevant facts or risks, such disregard involving a gross 

deviation from acceptable standards of conduct.” N.D.C.C. § 12.1-02-02(1)(c). 

[¶15] The act that constitutes the substantial step for an attempt offense must 

be intentional. Promotion of obscenity to minors under N.D.C.C. § 12.1-27.1-

03(1) only requires the accused act recklessly to commit the offense and does 
5

not require the accused intentionally commit the offense. Attempt requires a 

specific intent to commit the underlying crime. See Dominguez, 2013 ND 249, 

¶ 22. “An individual cannot intend to achieve a particular offense that by its 

definition is unintended.” Id. at ¶ 13 (quoting State v. Borner, 2013 ND 141, 

¶ 18, 836 N.W.2d 383). “[A]n attempt . . . cannot be committed by recklessness 

or negligence or on a strict liability basis, even if the underlying crime can be 

so committed.” Stensaker, 2007 ND 6, ¶ 13 (quoting 2 LaFave, supra, § 11.3).

The reckless culpability required for the offense of promoting obscenity to

minors is inconsistent with and cannot be rectified with the culpability 

required for criminal attempt.

[¶16] The State argues the evidence in this case proved Richter intentionally 

promoted obscenity to someone he believed was a minor. The State contends a 

lesser degree of culpability is satisfied if the proven degree of culpability is 

higher and it should be able to charge an attempt to commit an offense that 

has a reckless culpability as an intentional act if the facts warrant the charge. 

The State contends it should be able to impose a higher burden of proof when 

the evidence warrants it. 

[¶17] We question whether the State can choose to impose a higher burden 

than the statute requires in an attempt to create a cognizable offense. But even 

if that were possible, the State did not do that in this case. The State charged 

Richter with attempted promotion of obscenity to minors, alleging “The 

defendant intentionally engaged in conduct which constituted a substantial 

step towards Promoting obscenity to minors by . . . recklessly promoting to a 

minor any materials or performance which is harmful to minors.” The State 

did not allege in the information that Richter intentionally promoted the 

obscenity. Moreover, the State’s argument is a policy argument that would be 

better made to the legislature. 

[¶18] We conclude attempted promotion of obscenity to minors is not a 

cognizable offense and the district court erred by denying Richter’s motion to 

dismiss. 
6

III

[¶19] We reverse the judgment convicting Richter of attempted promotion of 

obscenity to minors and remand for the district court to allow Richter to 

withdraw his conditional guilty plea and dismiss the attempt charge. 

[¶20] Jon J. Jensen, C.J. 

Gerald W. VandeWalle 

Daniel J. Crothers 

Lisa Fair McEvers 

Jerod E. Tufte