IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2023 ND 226

Jean-Michael Kisi, Petitioner and Appellant

v.

State of North Dakota, Respondent and Appellee

No. 20230074

Appeal from the District Court of Williams County, Northwest Judicial 

District, the Honorable Paul W. Jacobson, Judge.

AFFIRMED.

Opinion of the Court by Tufte, Justice.

Jean-Michael Kisi, self-represented, Bismarck, N.D., petitioner and appellant; 

submitted on brief.

Nathan K. Madden, Assistant State’s Attorney, Williston, N.D., for respondent 

and appellee; submitted on brief.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

DECEMBER 1, 2023 

STATE OF NORTH DAKOTA
1

Kisi v. State

No. 20230074

Tufte, Justice.

[¶1] Jean-Michael Kisi appeals from orders dismissing in part and denying

in part his application for postconviction relief. He argues the district court 

erred because he was convicted of a non-cognizable offense, accomplice to 

attempted murder. He also argues the district court erred by dismissing his 

other claims for relief on grounds that he received ineffective assistance of 

counsel, the court followed improper trial procedure, and the State committed 

prosecutorial misconduct. We affirm.

I

[¶2] A jury convicted Kisi of gross sexual imposition and accomplice to 

attempted murder. Kisi appealed the judgment, and we affirmed. State v. Kisi, 

2018 ND 147, ¶ 1, 913 N.W.2d 767.

[¶3] Kisi applied for postconviction relief. He alleged the conviction of 

accomplice to attempted murder is illegal because a “knowing” murder under

N.D.C.C. § 12.1-16-01(1)(a) cannot be the underlying offense for an accomplice 

to an attempt offense. He also argues he received ineffective assistance of 

counsel, the district court followed improper trial procedure, and the State 

committed prosecutorial misconduct.

[¶4] The State responded to Kisi’s application and moved for summary 

dismissal. The district court granted the State’s motion in part, and dismissed 

Kisi’s claims of ineffective assistance of counsel, improper trial procedure, and 

prosecutorial misconduct on the basis that Kisi had raised no genuine issue of 

material fact. The court ordered an evidentiary hearing on the issue of the noncognizable offense. After the hearing, the court concluded accomplice to 

attempted knowing murder is a non-cognizable offense, but the erroneous jury 

instruction was harmless beyond a reasonable doubt because it determined 

this jury convicted on attempted intentional murder. The court denied Kisi’s 

application for postconviction relief. Kisi appeals.
2

II

[¶5] “Post-conviction relief proceedings are civil in nature and governed by 

the North Dakota Rules of Civil Procedure.” Myers v. State, 2017 ND 66, ¶ 7, 

891 N.W.2d 724 (quoting Wacht v. State, 2015 ND 154, ¶ 6, 864 N.W.2d 740). 

The standard of review in a postconviction proceeding is well-established:

A trial court’s findings of fact in post-conviction relief 

proceedings will not be disturbed unless they are clearly 

erroneous. A finding of fact is clearly erroneous if it is induced by 

an erroneous view of the law, if it is not supported by any evidence, 

or if, although there is some evidence to support it, a reviewing 

court is left with a definite and firm conviction that a mistake has 

been made. Questions of law are fully reviewable on appeal of a 

post-conviction proceeding.

Olson v. State, 2019 ND 135, ¶ 7, 927 N.W.2d 444 (citations omitted). “The 

interpretation of a statute is a question of law, which is fully reviewable on 

appeal.” Pemberton v. State, 2021 ND 85, ¶ 7, 959 N.W.2d 891.

[¶6] A person convicted and sentenced for a crime may apply for 

postconviction relief upon the ground that “[t]he conviction was obtained or the 

sentence was imposed in violation of the laws or the Constitution of the United 

States or of the laws or Constitution of North Dakota.” N.D.C.C. § 29-32.1-

01(1)(a); Dominguez v. State, 2013 ND 249, ¶ 23, 840 N.W.2d 596.

III

[¶7] Kisi argues the district court erred by denying his application for 

postconviction relief, because accomplice to attempted knowing murder is a 

non-cognizable offense and the State did not show the inclusion of “knowing” 

in the jury instructions was harmless error. Whether accomplice to attempted 

knowing murder is a non-cognizable offense is a question of law fully 

reviewable on appeal.

[¶8] Kisi was charged with accomplice to attempted murder under N.D.C.C. 

§§ 12.1-03-01 and 12.1-16-01(1)(a). The relevant part of the criminal attempt 

statute, N.D.C.C. § 12.1-06-01(1), states:
3

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.

A person is guilty of murder under N.D.C.C. § 12.1-16-01(1)(a) if the person 

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

person engages in conduct “intentionally” “if, when he engages in the conduct, 

it is his purpose to do so.” N.D.C.C. § 12.1-02-02(1)(a). A person engages in 

conduct “knowingly” “if, when he engages in the conduct, he knows or has a 

firm belief, unaccompanied by substantial doubt, that he is doing so, whether 

or not it is his purpose to do so.” N.D.C.C. § 12.1-02-02(1)(b).

[¶9] The essential elements instruction read: “Jean-Michael Kisi, acting with 

the kind of culpability otherwise required for the intentional or knowing killing 

of [victim] a human being . . . [a]ided David Mbulu in committing the offense 

of attempted murder.” (Emphasis added.) The jury instructions explain:

A person who, intending that the offense of Murder be committed, 

commands, induces, procures, or aids another to commit it, or 

being a co-conspirator whose association with the offense matches 

such actions is guilty of Accomplice to Attempted Murder wherein 

the actions of the parties do not result in the death of the intended 

target, but demonstrate an intent to kill the intended target.

A

[¶10] An attempt offense requires an intent to complete the underlying 

criminal offense. Pemberton, 2021 ND 85, ¶ 24; Dominguez, 2013 ND 249, ¶ 22. 

Where the underlying offense is murder, an intent to kill is required. 

Pemberton, at ¶ 24. “The offense of murder requires the defendant to cause the 

death of another; therefore, in order to intend to complete the commission of 

the offense for purposes of attempted murder, the defendant must have an 

intent to cause the death of another.” Id. at ¶ 11. An attempted knowing

murder is not a cognizable offense. Id. at ¶¶ 11, 24.
4

[¶11] Our case law distinguishes intentional murder from knowing murder. 

See State v. Swanson, 2019 ND 181, 930 N.W.2d 645. The statutory definition 

of knowingly includes “when he engages in the conduct, he knows or has a firm 

belief, unaccompanied by substantial doubt, that he is doing so, whether or not 

it is his purpose to do so.” N.D.C.C. § 12.1-02-02(1)(b) (emphasis added). 

“Purpose” has been defined as “[t]hat which one sets before him to accomplish.”

Black’s Law Dictionary 1400 (4th ed. 1968). It is “[a]n objective, goal, or end.” 

Black’s Law Dictionary 1493 (11th ed. 2019). “Intention” and “purpose” are 

synonyms. Webster’s Third New International Dictionary 1847 (16th ed. 1971). 

“As such, the term knowingly, when used in conjunction with N.D.C.C. § 12.1-

16-01(1)(a), permits an individual to be convicted of a murder when they did 

not have the purpose (synonymous with intent) to cause the death of another 

human being.” Swanson, 2019 ND 181, ¶ 13. For this reason, the inclusion of 

“knowingly” in the jury instruction may render a conviction illegal as a noncognizable offense. See, e.g., Swanson, 2019 ND 181, ¶ 15; State v. Borner, 2013 

ND 141, ¶ 7, 836 N.W.2d 383.

[¶12] In Pemberton, 2021 ND 85, ¶¶ 13, 17, where we held attempted knowing

murder is not a cognizable offense, we noted the jury instructions included the 

word “knowingly,” which allowed the jury to find the defendant guilty of a noncognizable offense. See also Mbulu v. State, 2022 ND 138, ¶ 26, 977 N.W.2d 305 

(reversing on a separate issue but allowing “the parties an opportunity to 

address the Pemberton opinion” on Mbulu’s conspiracy to commit murder 

charge). We held under the instructions in Pemberton, the jury could have 

found Pemberton guilty of attempted murder without finding he intended to 

kill another human being. In that case, the instructions allowed the jury to find 

Pemberton guilty of a non-cognizable offense. Our decision in Pemberton went 

on to consider whether any error was harmless beyond a reasonable doubt as 

contemplated in Dominguez, 2013 ND 249.

B

[¶13] The State argues inclusion of “knowing” in the jury instructions was 

harmless error because the intent to kill was clear by the intentional nature of

Kisi’s conduct.
5

[¶14] “When there is evidence of an intent to kill, a person can be convicted of 

attempted murder under N.D.C.C. §§ 12.1-06-01 and 12.1-16-01(1)(a) for 

attempting to knowingly or intentionally cause the death of another human 

being.” Dominguez, 2013 ND 249, ¶ 19. “[I]f the jury was instructed on multiple 

theories of guilt and one theory was invalid,” a conviction is not automatically 

reversed. Pemberton, 2021 ND 85, ¶ 18. The error does not require reversal if 

the State proves the error was harmless beyond a reasonable doubt. Id.

[¶15] We have explained:

Harmless error is any error, defect, irregularity or variance which 

does not affect substantial rights. Stated simply, harmless error is 

error that is not prejudicial. If the error is one of constitutional 

magnitude, we must determine whether the error was harmless 

beyond a reasonable doubt by considering the probable effect of the 

error in light of all the evidence. A federal constitutional error is 

harmless if we are convinced the error did not contribute to the 

verdict.

Pemberton, 2021 ND 85, ¶ 18 (cleaned up). “Any error, defect, irregularity or 

variance that does not affect substantial rights must be disregarded.” 

N.D.R.Crim.P. 52(a). “The State bears the burden of proving that an error is 

harmless and does not warrant reversal.” Pemberton, at ¶ 20.

[¶16] Our determination of whether an error is harmless beyond a reasonable 

doubt considers the probable effect of the error in light of all the evidence. State 

v. Kruckenberg, 2008 ND 212, ¶ 15, 758 N.W.2d 427. We look at the effect of 

the error on the jury in that case. Pemberton, 2021 ND 85, ¶ 25. Here, the 

evidence shows, beyond a reasonable doubt, the jury convicted Kisi of 

attempted intentional murder.

[¶17] The State presented video evidence, filmed by the other individual on the 

day of the attack, showing Kisi claiming if the victim “placed her hand on” him

they would assault her, leave her on the side of the road, and run her over with 

the car. The victim testified Kisi drove her to the “middle of nowhere.” The 

victim was told to get out of the car by the other individual and she obeyed. 

The other individual caught her and started to strangle her. Kisi interrupted 
6

the strangling and removed some of the victim’s clothes. Both the victim and 

Kisi testified the other individual intended to kill the victim.

[¶18] The victim further testified Kisi directed the other individual “to get 

something out of the trunk,” and Kisi held her down for at least a minute while 

the other individual retrieved a car jack. Then the other individual beat the 

victim’s head multiple times. The evidence presented directly established

intent.

[¶19] Other states have addressed this issue, holding an error in a jury 

instruction does not constitute reversible error when the jury could not

rationally conclude the defendant acted knowingly without concluding he acted 

intentionally based on the evidence. See State v. Casey, 82 P.3d 1106, 1116-18 

(Utah 2003). Evidence is used to establish intent.

In many cases, the predicate facts conclusively establish intent, so 

that no rational jury could find that the defendant committed the 

relevant criminal act but did not intend to cause injury. See, e.g., 

Lamb v. Jernigan, 683 F.2d 1332, 1342–1343 (CA11 1982), cert. 

denied, 460 U.S. 1024, 103 S.Ct. 1276, 75 L.Ed.2d 496 (1983). In 

that event the erroneous instruction is simply superfluous: the 

jury has found, in Winship’s words, “every fact necessary” to 

establish every element of the offense beyond a reasonable doubt. 

See Connecticut v. Johnson, supra, at 460 U.S. 97, 103 S.Ct., at 983 

(POWELL, J., dissenting); Jeffries & Stephan, Defenses, 

Presumptions, and Burden of Proof in the Criminal Law, 88 Yale 

L.J. 1325, 1388, n.192 (1979).

Rose v. Clark, 478 U.S. 570, 580-81 (1986).

[¶20] We must also consider the closing argument to the jury. See, e.g., Rosales 

v. State, 23 N.E.3d 8, 15-16 (Ind. 2015) (explaining when an erroneous jury 

instruction is specifically argued to the jury, it is not harmless error). In its 

closing argument, the State argued only intentional murder:

Remember, you’re in an isolated area. There’s nobody around. 

She’s the only witness. You get rid of witnesses.

. . . .

Murder is the knowing or intentional killing of someone else, 

and when you get to what’s known as attempted murder, it’s 
7

basically your intending to get there. You do steps, but you just 

don’t quite get it done.

. . . .

You have that. You have the chokehold, the stranglehold. 

Even the Defendant was talking about her starting to turn colors. 

That’s not good for the human body either. The petechiae where 

you got the little blood blister type things. You heard Dr. Li talk 

about it can lead to vascular problems, things of that nature.

And you have the cold. It’s not good to be outside in those 

temperatures in a t-shirt. Nobody else that you heard from in this 

entire trial was willing to be outside in a t-shirt. . . .

Basically, they did everything they needed to do to get [the 

victim] dead. She was tougher than they thought. She survived 

what happened out there.

[¶21] The State did not rely on the “knowing” part of the jury instruction in its 

argument. The State presented facts to show intent and argued the acts were 

intentional. See Pemberton, 2021 ND 85, ¶ 23 (reversing because the jury was 

instructed it could convict on attempted murder even if it agreed the defendant 

had not intended to commit murder). Here, the State’s evidence and argument 

were directed only at intentional murder.

[¶22] Presented with this overwhelming evidence and the State’s argument 

regarding intent, there is no basis on which this jury could have concluded Kisi 

acted knowingly rather than intentionally. The erroneous inclusion of 

“knowing” in the jury instruction was harmless beyond a reasonable doubt.

IV

[¶23] Kisi argues his trial counsel provided ineffective assistance when he 

made statements during closing argument which were harmful to the defense 

and needlessly elicited testimony from C.B. on the issue of penetration, which 

violated Kisi’s right to a fair trial.

[¶24] The district court summarily disposed of Kisi’s ineffective assistance of 

counsel claim. A district court may grant summary disposition of a petition for 

postconviction relief “if the application, pleadings, any previous proceeding, 

discovery, or other matters of record show that no genuine issues exist as to 
8

any material fact and the moving party is entitled to judgment as a matter of 

law.” N.D.C.C. § 29-32.1-09.1(1) (formerly § 29-32.1-09(3)).

This Court reviews an appeal from summary dismissal of postconviction relief as it would review an appeal from a summary 

judgment. Myers, [2017 ND 66,] ¶ 7. “The party opposing the 

motion for summary dismissal is entitled to all reasonable 

inferences to be drawn from the evidence and is entitled to an 

evidentiary hearing if a reasonable inference raises a genuine 

issue of material fact.” Id.

Wootan v. State, 2023 ND 151, ¶ 4, 994 N.W.2d 347. “Generally, a claim of 

ineffective assistance of counsel is unsuited to summary disposition without an 

evidentiary hearing.” Id. at ¶ 6.

[¶25] Kisi’s ineffective assistance of counsel claims depend only on events that 

occurred on the record during trial. We reverse a summary dismissal when 

evidence outside the record is required to evaluate a claim. See, e.g., Wootan v. 

State, 2023 ND 151, ¶ 9, (reversing summary judgment where petitioner’s 

claim relied on advice to him by his attorney that was not in the record); Mbulu, 

2022 ND 138, ¶ 15 (reversing summary disposition where ineffective 

assistance of counsel claim relied on facts not in the underlying record). Kisi’s 

claims that his counsel’s closing argument and questioning of the victim were 

prejudicial are both fully reviewable in the underlying record. An evidentiary 

hearing was not necessary to resolve the claims. 

[¶26] To prevail on a claim of ineffective assistance of counsel, the applicant 

for post-conviction relief must show: “(1) counsel’s representation fell below an 

objective standard of reasonableness and (2) there is a reasonable probability 

that, but for counsel’s unprofessional errors, the result of the proceeding would 

have been different.” Yoney v. State, 2021 ND 132, ¶ 7, 962 N.W.2d 617 (quoting 

Olson, 2019 ND 135, ¶ 19). “There is a presumption that the counsel’s 

representation fell within the wide range of reasonable professional 

assistance.” Mbulu, 2022 ND 138, ¶ 8.

[¶27] The district court reviewed the record of the trial proceeding as 

permitted under § 29-32.1-09.1(1) for summary disposition and concluded 

there was no genuine issue of fact. The district court then summarily dismissed 
9

the claim that the trial attorney made harmful statements, because the trial 

transcript showed the attorney’s closing statements complimenting the 

prosecutors and contradicting Kisi’s testimony during direct examination were 

trial strategy. 

[¶28] Kisi argues trial counsel was ineffective in his cross-examination of the 

victim by asking questions that elicited statements she had been penetrated 

when she had not testified to that effect on direct examination. The district 

court concluded that the questions were trial strategy to confirm Kisi’s penis 

did not penetrate the victim. On direct examination, the victim testified that 

Kisi was “messing around down there with his hands.” The district court 

characterized the transcript as “unclear whether [Kisi] used any other body 

part.” Prior to the victim’s testimony, an EMS report was received without 

objection, which the court accurately described as quoting the victim stating 

Kisi “put his fingers inside of her.” The record at that point also included 

testimony that Kisi had the victim’s DNA on his right middle finger and the 

head of his penis. In its order dismissing this claim, the court noted the 

evidence showed “the victim’s DNA was already found on one finger.” The jury 

had also heard testimony that gravel was found in the victim’s vagina. The 

district court had to determine, based on the circumstances at the time, 

including the evidence already in the record, whether there was a genuine 

issue of fact as to (1) whether asking these questions was below the objective 

standard of reasonable representation, and, if so, (2) whether there was a 

reasonable probability of a different result. Whether counsel provides 

ineffective assistance by asking a question that may or may not elicit a desired 

answer is not determined in hindsight by the answer but prospectively by 

whether the relative risk of a harmful answer is outweighed by the likelihood 

of a helpful answer—a matter of trial strategy and tactics. See State v. Tippets, 

501 P.3d 570, 577-78 (Utah Ct. App. 2021) (explaining counsel’s effectiveness 

in cross-examining victim is determined by reasonable expectations about the 

answer, taking calculated risks in weighing the potential value against the 

perceived risk); Hodge v. Haeberlin, 579 F.3d 627, 641-42 (6th Cir. 2009) (“The 

wisdom of counsel’s strategy must be judged based on the circumstances as a 

whole as they stood at the time counsel made his decisions.”); State v. Shelnutt,

879 S.E.2d 510, 518-19 (Ga. App. 2022) (explaining that cross-examination is 

a matter of tactics and will rarely constitute ineffective assistance because it 
10

should not be evaluated by hindsight based on the answers elicited). On this 

record, the district court correctly concluded there was no genuine issue of fact 

as to whether counsel’s cross-examination constituted part of an objectively 

reasonable trial strategy.

[¶29] Kisi raised no genuine issue of material fact, and counsel’s 

representation did not fall below an objective standard of reasonableness. 

Summary disposition was appropriate.

V

[¶30] Kisi also argues the district court erred by denying his application for 

postconviction relief on grounds the court followed improper trial procedure 

and the State committed prosecutorial misconduct.

[¶31] The district court granted summary disposition on these claims. On our 

review of the record, we agree with the district court that Kisi did not raise a 

genuine issue of material fact on these claims. We summarily affirm the 

district court order dismissing the remaining issues under N.D.R.App.P. 

35.1(a)(6).

VI

[¶32] We affirm the district court order dismissing in part and denying in part 

Kisi’s application for postconviction relief.

[¶33] Jon J. Jensen, C.J.

Daniel J. Crothers

Lisa Fair McEvers

Jerod E. Tufte

Douglas A. Bahr