### File d 6 /2 7 /1 9 b y Cle r k o f S u p r e m e Co u r t IN THE S UPREME COURT S TATE OF NORTH DAKOTA

2019 ND 157

State of North Dakota, Plaintif f and Appellee

v.

Lorenzo Traveras Pem

b erton, Def endant and Appellant

Nos. 20180414 & 20180415

Appeal f r om t he District Court of Stark County , Southwest Judicial District, the Honorable W illiam

A. Herauf

, Judge.

AFFIRMED. Opinion of

the Court by

Jensen, Justice. Brittney A. Bornem ann, Assistant State’s Attorney , Dickinson, ND, f or plaintif f and appellee.

Scott O. Diam ond, Fargo, ND, f o r def endant and appellant.State v. Pem berton N os. 20180414 & 20180415

Jensen, Justice. [ ¶1] Lorenzo Traveras Pem berton appeals f

rom a district court’s crim inal j udgm ent entered a f

ter a jury f

ound h im guilty of aggravated assault , i n t erf erence with an

em ergency call, f

e lonious restraint, attem

p ted m u rder, and child neglect. Pem berton
argues the district c ourt erred in g ranting the State’s m o tion to am end the c rim inal i n f orm ation one week bef

ore trial, the jury was provided im proper instructions, t h e jury was provided w ith an i m proper verdict f

orm , and the d istrict court f ailed to properly adm onish the jury

bef ore each break in the trial proceedings. W e af f irm

. I. [ ¶2] Pem

berton was part of an incident involving h is girl f r i e n d , which occurred during the night o f Febr u a r y 2 2 a n d extended into February 23, 2018. During the incid e n t , P em

berton and the victim ’ s argum ent escalated and the victim eventually placed a 911 em ergency c all. Following the call, the argum ent becam e p hy sical and Pem berton is alleged to have struck the v ictim a nd pushed her t o the g round. W hile they were struggling o n the g round, the victim saw a screwdriver on the f loor, picked it up, a n d i s a l leged to have struck Pem berton w ith the s crewdriver. Pem berton obtained control of t he screwdriver f r om the victim a n d s truck her with it. Eventually law enf orcem ent arrived at the scene, and Pem b erton was taken i n t o c ustody and placed under arrest. [ ¶3] Pem

berton was i nitially charged with aggravated assault, interf erence with an

em ergency call, and f

elonious restraint. On March 15, 2018, the State added charges of attem pted m urder and child neglect in a separate crimi n a l f i l e

. The c rim inal inf orm ation containing t h e a llegation of attem pted m u rder a lleged Pem

berton “intentionally engaged i n conduct which, i n f act, constituted a step towards the

com m ission o f the crim e o f m urder, when the Def

endant a ttem

pted to c a use the death of another hum an being u nder circum stances m anif esting e xtrem e indif

f erence to the 1value of hum an lif

e.” The language used f

or the attem

pted m u rder charge m i rrored the language used to def

i ne m urder under N.D.C.C. § 12.1-16-01(1)(b). [ ¶4] In Dominguez v

. S tate , this Court held attem pted m urder under N.D.C.C. §§ 12.1

- 0 6-01 and 12.1-16-01(1)(b), is not a c ognizable of f ense. 2013 ND 249, ¶ 22, 840 N.W .2d 596. See also Coppage v. State , 2014 N D 42, ¶¶ 27-28, 843 N.W .2d 291. In Dominguez , t he def

endant argued an individual cannot have the specif ic intent to

com m it the general intent c rim e of m urder u nder circum stances m anif esting an extrem e indif

f erence of hum an lif

e. Dominguez , at ¶ 9. Because the attem pt statute requires the specif

ic i ntent t o com

plete the underly ing crim e, but extrem e indif f erence

m urder results in an unintentional death, this Court held there is a n inconsistency in the elem ents of t he t w o c r i me s that is “ logically and legally im possible t o rectif

y .” Id. at ¶ 13. A ttem

pted m urder under N.D.C.C. § 12.1-06-01, using the def inition of

m urder under N.D.C.C. § 12.1-16-01(1)(b), is not a cognizable o f f ense. Id. at ¶ 22. [ ¶5] On May 7 , 2 0 1 8, t he district c ourt conducted a prelim inary h earing on the f elony charges. At the conclusion of the hearing, the court f o und there was probable cause to support all of

the charges, including the attem pted m u rder charge. [ ¶6] On August 22, 2018, one week prior to the t rial, the State f iled a m otion to

am end the c rim inal inf

orm ation. The State sought to am end the charge of attem pted

m urder by striking the language alleging “the Def endant a t tem

pted to c a use the death of another h u m an being under circum stances m anif esting e xtrem e indif

f erence to the

v a l u e o f h um an lif

e ,” and replacing it with the allegation that, “the Def endant
attem pted t o intentionally or knowingly cause t h e d eath of another hum an being.” The district court allowed the State’s requested am endm ent. One day bef ore the trial began, the State f

iled a single am ended crim inal inf orm ation alleging the f

ive charges, including the am ended attem pted m urder charge. [ ¶7] Pem

berton was f

ound guilty

of the f ive charges af

ter a j ury trial. On appeal, Pem berton a rgues the district court com m itted r e v e r s i b l e error by : ( 1) f inding probable cause e xisted f

or t he attem

pted m urder charge at the prelim inary h earing, (2) allowing the State to add additional crim inal c h arges the day bef ore the jury trial, (3) 2giving conf using and unreliable jury instructions, (4) providing the jury wi t h an im p roper verdict f

orm , and (5) f

ailing to properly

adm onish the jury , as required by N.D.C.C. § 29-21-28. II. [ ¶8] Pem

berton c oncedes none of the i ssues h e has raised o n a ppeal were the subject of an objection in the district court, and the appropriate standard of review f or t h e i s sues o n appeal is a review f or obvious error. This Court has p reviously noted that “issues n ot raised at trial will not b e addressed on appeal unless the alleged error rises t o the level of obvious e rror u nder N.D.R.Crim .P. 52(b).” S tate v. Lott , 2019 ND 18, ¶ 8, 921 N.W .2d 428. This Court’s obvious error standard is well established: To establish obvious error, the def endant h as the burden to dem onstrate plain error which a f

f ected his substantial rights. To constitute obvious error, the error m

ust be a clear deviation f

rom an applicable legal rule under current l aw. There is no obvious error when an applicable rule of law is not clearly

established. Id . (quoting State v. Tresenriter , 2012 ND 240, ¶ 12, 823 N.W .2d 774). [ ¶9] W hen asserting a c laim of obvious error, a def endant m u st show: (1) error; (2) that is plain; a nd (3) t he error af f ects the def

endant’s substantial rights

. S t a t e v

. W angstad , 2018 ND 2 17, ¶ 1 4, 917 N.W .2d 515. “W e e xercise our power to consider obvious error cautiously

and only in exceptional situations where the def endant has suf f e red serious i njustice.” State v. Glass , 2 000 N D 212, ¶ 4, 620 N.W .2d 146 (internal quotation m a rks om itted). “W hen analy zing obvious error, w e e x am ine the entire record f

or the probable ef

f ect of the alleged error in light of all the evidence.” W angstad , at ¶ 1 4. T his Court has also noted t he f ollowing regarding obvious error: Even if the d ef

endant m ee t s h i s b urden of establishing obvious error af f e c t ing substantial rights, the determ ination w hether to correct the
error lies within t he discretion o f the appellate court, and t h e court should exercise that discret i o n only if the error seriously a f f e cts the f airness, integrity or public reputation of judicial proceedin gs. An
a lleged error does not constitute obvious error u nless there is a clear deviation f

rom an applicable legal rule under current law. State v. Patterson , 2014 ND 193, ¶ 4, 855 N.W .2d 113 (citations om itted).

3III.

[ ¶10] Pem

berton a rgues the district court f inding probable cause e xisted f or the original attem

pted m urder c harge at the prelim inary hearing was r eversible error. His
argu m ent begins w ith a ref erence to our prior holding in Dominguez that attem pted

m urder under N.D.C.C. § 12.1-06-01, using the def inition o f m

urder under N.D.C.C. § 12.1-16-01(1)(b), is not a cognizable of f e nse. Dominguez, 2013 ND 2 49, ¶ 22, 840 N.W .2d 596. He concludes that f inding probable cause f

or a non-cognizable of

f ense is not legally

possible. [ ¶11] W e have previously held that “ a district court’s decision at a prelim inary hearing that p robable cause e xisted to bind a def endant over f

or trial i s rendered m oot

once the tr i a l i s h e l d .” State v. Montplaisir , 2015 ND 237, ¶ 16, 869 N.W .2d 435. Pem berton was f

ound guilty at trial, and t he d istrict court’s determ ination on probable

cause m ade a t t he prelim inary hearing is not appropriate f or review on appeal. Theref ore, we need not address Pem b erton’s argum ent alleging the district court erred in f i nding probable cause existed to bind him over f or trial. I V. [ ¶12] P em

berton argues the district court’s decision to grant t he State’s request to

am end the attem

pted m urder charge im m ediate l y p r i or to trial i s o bvious error. An

am endm ent of a crim inal inf orm ation is governed by N.D.R.Crim .P. 7(e), w h ich reads

as f o llows: “Unless an additional or dif f erent o f f ense is charged or a substantial right of t he def endant is prejudiced, the court m ay perm it an inf orm ation to be am e nded at
any tim e bef

ore the verdict or f

inding.” This Court reviews a district court’s decision to allow an inf

orm ation to be am ended f or an abuse of

discretion. S

tate v. Carlson , 2016 ND 130, ¶ 6, 881 N.W .2d 649. “A district court abuses its discretion if it acts in a n u nreasonable, arbitrary , or unconscionable m anner, if its decision is not the product of a r a t i o n a l m ental process leading to a reasoned decision, or if it

m isinterprets or m i sapplies the law.” Id. [ ¶13] The attem

pted m urder o f f ense charged under N.D.C.C. § 1 2.1-16-01(1)(b) in the initial inf

orm a tion a n d the attem

pted m urder of f ense charged under N.D.C.C. § 412.1-16-0 1 ( 1 ) ( a ) in the a m ended inf orm a t ion are dif

f erent. M urder using the def inition of m

urder u nder N.D.C.C. § 12.1-16-01( 1 ) ( b ) requires proof of “an unintentional death f

r om behavior m anif

esting an extrem e i ndif

f erence to the value of hum an lif

e.” State v. Borner , 2013 ND 141, ¶ 18, 836 N.W

. 2d 383. In c ontrast,
attem pted m urder using the def

inition o f m

urder under N.D.C.C. § 12.1-16-01(1)(a) requires proof of i ntentionally or knowingly attem pting to cause a death. Id

. at ¶¶ 19- 20. The culpability

elem ents are dif

f erent f o r the two charges. [ ¶14] The am endm ent, which m odif ie d t h e elem ents, resulted in Pem berton being charged with a dif

f erent of f e nse. Am endm ent o f an i nf orm ation to charge a dif

f erent of f ense is contrary t o N.D.R.Crim .P. 7(e) and a m isapplication of law. T h e district court abused its discretion by allowing the am endm ent. [ ¶15] Although the district c ourt abused its d i s c r e t i o n and erred in allowing the

am endm ent, because Pem berton f ailed to objec t , t h i s Court m ust review the error under the obvious error standard of r eview. P em b erton has satisf

ied the f irst requirem ent of establishi n g an error a nd, b ecause t he error w as a c l ear violation of N.D.R.Crim .P. 7(e), we conclude he has s a t i s f i e d the second r equirem ent of establishing plain error. [ ¶16] Pem

berton m ust also establish the error af f e c t s a substantial r ight. Our considerati o n of obvious error i s undertaken c autiously and o nly when there are exceptional s ituations where the def endant has suf

f ered serious injustice. Glass , 2000 ND 212, ¶ 4, 620 N .W .2d 146. Pem bert o n argues the n ew charge required a prelim inary h earing, and he was substantially prejudiced by the absence of a prelim inary h e aring. He also argues the tim ing of the dif f erent charge, im m ediately prior to trial, created substantial prejudice because it m ay have altered his def

ense. [ ¶17] Pem

berton’s f ailure to object t o the absence of a preli minary hearing results in a waiver of his statutory right to a prelim i n a r y h e a r i n g and d oes not constitute a suf f i cient reason f

or concluding he was substantially p r e j u d i ced. State v. Foreid , 2009 ND 41, ¶ 14, 763 N.W .2d 475. The tim ing o f the am endm ent, im m ediately prior
to trial, is not per se substantially prejudicial as this Court h as previously af f irm ed a 5trial court’s decision to allow t he am endm ent of a com plaint a day bef

ore trial. See , e.g ., Carlson , 2016 ND 1 30, ¶ 10, 881 N.W .2d 649. The lack of an o bjection lim its the record, on this direct a ppeal, with regard to Pem b erton’s assertion that his def ense to one or m ore of the charges changed as a result of the am e ndm ent. In t he p resent
case, the am endm ent did not m odif y the f acts upon which the State sought to prove the attem pted m urder charge. Our exam ination of the entire record f or the probable ef f ect of t he alleged err o r , i n l i g ht of all the evidence, does not indicate the error seriously a f

f ects the f airness, integrity , or public reputation o f judicial proceedings. Pem berton has f

ailed to establish all the requirem ents to support a claim of obvious

error. V. [ ¶18] Pem

berton arg ues t he jury instructions provided by the district court were “m isleading, conf

using a nd did not adequately i nf orm the jury of t h e l a w

. ” In the prelim inary instructions to the jury , t h e c o u r t recited all o f N.D.C.C. § 12.1-16-01. Under N.D.C.C. § 12.1-16-01, an individual m a y be guilty of m urder in three way s: (a) i ntentionally or knowingly causing the death of another h um an being, (b) causing the d eath of another hum an being under circum stances m anif e st i n g extrem e indif f erence to the value o f hum an lif e, and (c) f

elony m urder. The charge u ltim ately
sent t o the j ury was lim ited to a ttem pted m urder under the def

inition of m

u rder under N.D.C.C. § 12.1-16-01(1)(a)—“attem pt[ ing] to intentionally o r knowingly cause the death of another hum an being

. ” Pem berton asserts because it is possible the jury convicted him based on at t e m p t e d mu rder u sing the d ef initions ( b) and (c), his conviction m

ust be reversed. [ ¶19] Pem

berton d id not object to the instructions at trial, and this Court’s review is lim ited to whether t he jury instructions constitute plain or obvious e r ror. W a ngstad , 2018 ND 217, ¶ 1 6, 917 N.W .2 d 5 1 5 ; State v. Martinez , 2015 ND 173, ¶ 9, 865 N.W .2d 391. To support his claim of obvious error, Pem berton m ust establish a plain error that af

f ects a substantial right.

6[ ¶20] The instruction P em berton challenges appeared in the d ef inition section of the prelim inary instructions. Subsequent instructions provided the jury t wice with the f ram ework under which Pem berton’s actions were t o be analy zed. Under “Count I,” the jury was instructed to decide whether Pem berton “attem

pte d to intentionally or knowingly cause the d eath of another h um an being” when he stabbed the victim with

a scre w d r i ver m

ultiple tim e s in the head. Later in t he instructions, the essential elem ents f

or conviction of Pem

berton f or attem pted m urder are co mmu n i c ated as “[ a]ttem pt[ ing] to intentionally or knowingly cause t he d eath of an o t h e r hum an being.” The two subsequent instructions provided t he appropriate statutory language under which the jury was to determ ine if Pem berton could be convicted of the
attem pted m urder charge. [ ¶21] “Jury i nstructi o n s m ust correctly and adequately inf orm the jury of the applicable law and m

ust not m islead or conf

use the jury .” Martinez , 2015 ND 173, ¶ 8, 865 N.W .2d 3 9 1 (q u o t i n g State v. Pavlicek , 2012 ND 154, ¶ 14, 819 N.W .2d 521). This Court reviews t h e i n s t r uctions as a whole to determ ine if they correctly and adequately inf

orm the jury

. Pavlice k , a t ¶ 14. H ere, the jury was given the
correct description of a ttem p ted m urder twice i n t he i nstru ctions. W hile the def initions s ection c o n t a i ned the broader statutory def inition of m

urder, the instructions clearly directed t he jury to consider whether Pem b erton a ttem

p ted to intentionally or k

nowingly cause the death of another hum an b eing. In reviewing this

case to determ ine w hether the jury instruction at i ssue was obvious error, we conclude the jury instructions as a whole adequately inf orm ed t he j ury of the applicable law and did not m islead or c onf

use the jury , and t heref

o re did not af

f ect a substantial right. Pem berton did not establish his claim t he jury instructions subm itted to the jury created obvious error. V I. [ ¶22] Pem

berton argues beca use the crim inal c o m plaint is ref

erenced in the jury instructions, there is reversible error because the c om plaint cites t he af

orem entioned non-cognizable attem

pted m urder charge. The verdict f orm asked t he jury how they 7f

o u n d , “W ith respect to the of f ense of Attem

pted Murder set f

o rth in the Cri mi n a l Com plaint.” Pem

berton did not object to the verdict f orm at trial, and our analy sis is again lim ited to obvious error. [ ¶23] Pem

berton concedes the jurors were not p rovided w ith a copy of the com plaint

or am ended inf

orm ation. The at t e m

pted m urder charge plead in t he am ended inf orm ation w a s p r ovided to the j ury in the prelim inary instructions. W h ile the verdict f orm r e f e renced the com

plaint w hich plead the non-cognizable of f ense, the jury was not instructed o n the charge in the original com plaint and Pem

b erton has not provided any citation to the record which would indicate the j ury was even aware the non-cognizable of

f ense h a d b een plead. Pem berton has not shown how the error seriously af f ects the f airness, i ntegrity , or public reputation of judicial proceedings. In t he a bsence of e vidence showing the error seriously af f ects t he f airness, integrity ,
or public reputation o f judicial proceedings, Pem berton has f

ailed to establish the error af f e cts a substantial right as required under his claim there was obvious error. VII. [ ¶24] Pem

berton argues the district court’s repeated f ailure to properly adm o nish the j u r y b e f ore breaks and adjournm e nt, as required by N.D.C.C. § 2 9-21-28, should result in reversible error. Again, the lack o f objection at trial r equires us to consider whether there was obvious error. [ ¶25] Under N.D.C.C. § 29-21-28, the district c ourt i s required t o adm onish the jury as f o llows: The j urors also, at each adjournm ent of the court, whether p erm i tted to separate or required t o b e k e p t in c harge of of f icers, m ust be adm onished b y t h e court that it is their d uty n ot t o converse am o ng t h e m selves n or with any one else on any subject connected wi t h t h e trial, nor t o f

orm o r express any opinion thereon, until the case is f inally subm i tted to them

. W h ile the d istrict court did not properly adm onish the jury under N.D.C.C. § 29-21-28 during breaks and adjournm ent , t he court did inf orm t he jury of the substance of

8N.D.C.C. § 29-21-28 when it read the prelim inary jury instructions to the jury

. The court also gave a short f

orm adm onishm ent prior to all breaks. [ ¶26] W hen a def

endant f ails to object to a short f

orm jury adm onition, the error is
not c o n s i d e r e d p rejudicial. See State v. Olson , 274 N.W .2d 190, 191 (N.D. 1978). W h en a jury is not adm onished properly , the def endant m ust o bject or show prejudice,

or the f aulty adm onition is considered harm less error. S tate v. Aguero , 2010 ND 210, ¶ 42, 791 N.W .2d 1; State v. Ripley , 2009 ND 1 0 5 , ¶ 2 7 , 766 N.W .2d 465; State v. Myers , 2006 ND 242, ¶ 1 7, 724 N.W .2d 168. Because Pem berton f ailed to object to the short f orm a dm onishm ent, we do not consider the error to be prejudicial. Because the error was n o t prejudicial, Pem berton has f

a i led to establish the erro r a f f e c ts a substantial right as required under his claim there was obvious error. VIII. [ ¶27] Pem

berton has f

ailed to support his claim that a probable cause f

inding f or a non-cognizable of

f ense, the am endm ent of the a tte mp t e d m urder charge, the jury instructions, the verdict f

orm , or irregularities in the adm o nishm ents g iven to the jury during trial, were obvious errors requiring reversal of his convictions. W e af f irm the judgm ent. [ ¶28] Jon J. Jensen Jerod E. Tuf

te Daniel J. Crothers Gerald W . VandeW alle, C.J.

I concur in the result. Lisa Fair McEvers

9