STATE v. SIMPSON (2026)

[¶1] Jeffrey Simpson appeals from a criminal judgment entered after a jury found him guilty of four counts of attempted murder and three counts of reckless endangerment. Simpson argues that the jury gave an inconsistent and compromised verdict by finding him guilty of all four attempted murder charges and that there was insufficient evidence to convict him resulting in reversible obvious error. We affirm the criminal judgment, but order the clerk of district court to correct a clerical error in the judgment.

I

[¶2] On March 22, 2024, a SWAT team was deployed to arrest Simpson at his place of employment for violent crimes he had allegedly committed the month prior. During a prearrest briefing, the team discussed that there was probable cause to arrest Simpson for violent felonies. Police intelligence indicated Simpson had a brown handgun and had made threats to “shoot it out with police.” A drone operator located Simpson walking between a white van and a maintenance shop at his workplace.

[¶3] As the SWAT officers approached, officers saw Simpson outside the van with the driver's door open. Despite officers announcing themselves multiple times, Simpson did not comply with commands to show his hands. An officer deployed a “less-lethal” round to attempt to gain Simpson's compliance. The less-lethal “sponge round” struck the driver's door window near where Simpson was standing. Simpson grabbed a handgun and fired upon officers. After Simpson fired two or three rounds at the officers, his firearm malfunctioned. Simpson retreated alongside a garage, trying to fix the malfunction. After clearing the jam, Simpson loaded another round in the gun's chamber. When he saw a SWAT vehicle approaching, Simpson fired one round into the ground. Simpson surrendered shortly thereafter.

[¶4] The State charged Simpson with fifteen counts stemming from the incidents occurring in February and March 2024, including burglary at night (count 1), domestic violence causing serious bodily injury (counts 2 and 7), two counts of terrorizing with a dangerous weapon (counts 3 and 5), felonious restraint (count 4), criminal mischief (count 6), four counts of attempted murder (counts 8, 9, 10, 11), three counts of reckless endangerment (counts 12, 13, 14), and possession of methamphetamine (count 15).

[¶5] In March 2025, Simpson pled guilty to eight of the charges (counts 1-7, 15) and proceeded to trial on the remaining seven charges (counts 8-14).¹ The district court held a four-day jury trial. After trial, the jury found Simpson guilty of four counts of attempted murder and three counts of reckless endangerment. The court sentenced Simpson, and a criminal judgment was entered.

II

[¶6] Simpson argues the jury gave an inconsistent and compromised verdict by finding him guilty of all four attempted murder charges.

[¶7] “This Court's standard of review for reconciling a jury verdict is whether the verdict is legally inconsistent.” State v. Villazana, 2024 ND 211, ¶ 23, 14 N.W.3d 76. As this Court has explained:

[A]n inconsistent verdict is one in which the jury has not followed the district court's instructions and the verdicts cannot be rationally reconciled. State v. McClary, 2004 ND 98, ¶ 6, 679 N.W.2d 455. “Strict standards of logical consistency need not be applied to jury verdicts in criminal cases.” State v. Jahner, 2003 ND 36, ¶ 19, 657 N.W.2d 266. Reconciliation of a verdict includes an examination of both the law and the case in order to determine whether the verdict is logical and probable, and therefore consistent, or illogical and clearly contrary to the evidence. Id.

State v. Aune, 2021 ND 7, ¶ 5, 953 N.W.2d 601 (emphasis added). “Verdicts are legally inconsistent when proof of the elements of one offense negates a necessary element of another offense.” State v. Coppage, 2008 ND 134, ¶ 17, 751 N.W.2d 254 (quoting State v. Cole, 542 N.W.2d 43, 50 (Minn. 1996)).

[¶8] In the Information, the State charged Simpson with four counts of attempted murder of Officer Daniel Essig, Officer Andrew Rebel, Deputy James Wright, and Officer Christopher Green, respectively, in violation of N.D.C.C. §§ 12.1-16-01(1)(a) and 12.1-06-01. 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.” Because “an attempted ‘knowing’ murder is a non-cognizable offense,” we have explained the State “must prove the accused had an intent to kill for a defendant to be convicted of attempted murder.” State v. Vervalen, 2024 ND 124, ¶ 7, 8 N.W.3d 816 (quoting Pemberton v. State, 2021 ND 85, ¶¶ 13-14, 959 N.W.2d 891).

[¶9] The opening instructions to the jury included a recitation of the charges. For each of the four counts of attempted murder, the information alleged in relevant part that Simpson “intentionally engaged in conduct which, in fact, constituted a substantial step towards intentionally causing the death of [the specified individual], another human being, by firing multiple rounds upon him in close range ․” (Emphasis added.) The closing jury instructions included a list of the “essential elements” and specifically defined “substantial step” for each of the four attempted murder counts:

ATTEMPTED MURDER (Count 1)

[¶1] A person who, intending to commit Murder, intentionally engages in conduct which constitutes a substantial step toward commission of Murder, is guilty of Attempted Murder.

ESSENTIAL ELEMENTS OF OFFENSE

[¶2] The State's burden of proof is satisfied if the evidence shows, beyond a reasonable doubt, the following essential elements:

1) On or about March 22, 2024, in Grand Forks County, North Dakota;

2) The Defendant, Jeffrey Simpson, Jr, intentionally engaged in conduct which constituted a substantial step towards the commission of Murder of Daniel Essig; and

3) The Defendant intended to commit Murder.

[¶3] The Essential elements of the charge of Murder are:

1) The Defendant;

2) Intentionally;

3) Caused the death of a human being.

[¶4] A “substantial step” is any conduct that tends toward but falls short of actual commission and is strongly corroborative of the firmness of the actor's intent to complete the commission of the crime.

The closing instructions’ count 1 concerned the attempted murder of Essig, and counts 2, 3, and 4 specified Rebel, Wright, and Green, respectively. The list of “essential elements” and specific definition for “substantial step” were identical. The verdict form of guilty for each of the four attempted murder counts stated, in part: “We, the Jury duly impaneled and sworn in the above entitled action, do find the Defendant, [Simpson], GUILTY of the crime of Attempted Murder of [the specified individual], as charged in the Information.”

[¶10] The parties also agreed to having a separate self-defense jury instruction providing there was an additional element to each count in that the jury must find the State has disproved self-defense. In response to the district court's question whether he was “satisfied with the jury instructions as they are prepared,” Simpson's counsel stated, “Yes.” The closing jury instructions “as they [were] prepared” provided the essential elements for attempted murder and specifically defined substantial step, and they became the law of the case. See Villazana, 2024 ND 211, ¶ 24. “Unchallenged jury instructions become the law of the case.” State v. Guthmiller, 2025 ND 162, ¶ 12, 26 N.W.3d 548 (quoting State v. Johnson, 2021 ND 161, ¶ 12, 964 N.W.2d 500). “A jury is presumed to follow instructions given by the trial court.” Villazana, ¶ 25 (quoting McClary, 2004 ND 98, ¶ 17). Moreover, we have held “[a] party waives an error when the party is given the opportunity to address it and intentionally relinquishes the opportunity.” Guthmiller, ¶ 9 (quoting State v. Studhorse, 2024 ND 110, ¶ 25, 7 N.W.3d 253 (waiver when the “court asked counsel whether they wished to make any changes to the instructions, and [defendant's] counsel stated, ‘I don't believe so.’ ”); and citing Vervalen, 2024 ND 124, ¶ 8 (party waived any error to the jury instruction when asked whether he had any other objections and responded he did not); State v. Houle, 2022 ND 96, ¶ 7, 974 N.W.2d 401 (any alleged error was waived when defendant did not object to the jury instructions or request any additional instructions and agreed to the jury instructions); State v. Yoney, 2020 ND 118, ¶ 13, 943 N.W.2d 791 (defendant waived alleged error when the parties discussed the jury instruction and defendant agreed to the final instruction)).

[¶11] Simpson argues the “law of the case” was laid out in the district court's “Opening Instructions to the Jury,” which restated the charges provided in the Information. Simpson contends this defined the “substantial step” for each of the attempted murder charges as Simpson “firing multiple rounds” upon a specifically named police officer. He asserts that the evidence presented, however, showed Simpson fired two rounds, and a third round was attempted but did not fire, and Simpson successfully fired only two rounds during the entire incident. Without case law citation, Simpson argues the jury's verdict is legally inconsistent because “[u]nder the charging framework” a conviction on any single count necessarily precludes conviction on the remaining three counts. He argues the jury's verdict creates a “legal impossibility” since “the same two rounds cannot simultaneously constitute the substantial step of firing upon four different specifically named officers,” and all four convictions are legally incompatible with each other.

[¶12] The State responds that the opening instructions only stated the charges as “printed in the Information” and did not provide instruction on the offenses’ essential elements, but rather were a “plain, concise, and definite written statement of the essential facts constituting the elements of the offense charged,” as required under N.D.R.Crim.P. 7(c)(1).² The State argues the district court's “Closing Instructions to the Jury” provided the “essential elements” of attempted murder and defined the “substantial step” element the same as in N.D.C.C. § 12.1-06-01. The State contends that because the jury was instructed on the “essential elements” and the “substantial step” statutory definition, “firing multiple rounds” as provided in the Information did not become an element of attempted murder as law of the case. We agree.

[¶13] Here, the district court's closing instructions provided the “essential elements” for attempted murder and specifically defined “substantial step,” as “any conduct that tends toward but falls short of actual commission and is strongly corroborative of the firmness of the actor's intent to complete the commission of the crime.” This “substantial step” definition tracks the statute and does not include “firing multiple rounds” upon each officer. Thus, the essential elements for attempted murder in this case did not require firing multiple bullets upon each officer. This comports, for example, with our decision in Villazana, 2024 ND 211, ¶¶ 24-26.

[¶14] In Villazana, the amended information for a terrorizing charge alleged the defendant “pointed a firearm at another individual.” 2024 ND 211, ¶ 24. However, the jury instructions providing the essential elements for terrorizing did not require use of a firearm. Id. ¶ 26. In reconciling the jury's verdict, we held it was “law of the case” the jury instructions did not require the jury to find a firearm was used in order to find the defendant guilty of terrorizing, substantial evidence supported the charge of terrorizing, and there was no legal inconsistency in the jury finding the defendant guilty of terrorizing. Id.

[¶15] In this case, merely restating the information's allegations for attempted murder in the district court's opening jury instructions did not define “substantial step” for purposes of the court's closing jury instructions. Moreover, to the extent Simpson now argues the closing jury instructions’ definition of “substantial step” for each count should include “firing multiple rounds” upon each officer, as alleged in the information, we conclude he waived the argument. See Guthmiller, 2025 ND 162, ¶ 9. The State's burden for each attempted murder count was to show Simpson's intent to kill and a substantial step toward killing each of the four officers. There was no legal requirement the State prove Simpson fired multiple rounds upon each officer; it was only required to show a substantial step, defined by the closing instructions, toward the killing of each officer.

[¶16] Considering the district court's instructions and the evidence presented in this case, it is not logically or legally inconsistent to conclude Simpson took substantial steps to kill each of the four officers. The evidence showed Simpson fired two or three rounds toward the officers before his firearm jammed; retreated around a shop building; cleared the jam; put another bullet in the chamber; and surrendered when he saw the SWAT vehicle's approach. In considering the court's jury instructions as a whole, including the essential elements’ definition of “substantial step,” and evidence presented at trial, there is no legal inconsistency in the jury finding Simpson guilty of four counts of attempted murder.

III

[¶17] Simpson argues there was insufficient evidence to convict him resulting in reversible obvious error. He contends insufficient evidence supports the jury's verdicts for four counts of attempted murder because evidence showed he only fired two rounds at the four police officers.

[¶18] “This Court will reverse a conviction on the ground of insufficient evidence if, after viewing the evidence and all reasonable inferences in the light favorable to the verdict, no rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. Rodriguez, 2020 ND 261, ¶ 13, 952 N.W.2d 233. “Under N.D.R.Crim.P. 29, a defendant in a criminal jury trial must move for a judgment of acquittal to preserve the issue of the sufficiency of the evidence for appeal.” Id. When a motion for a judgment of acquittal was made at trial on specified grounds that did not include the issue subsequently raised on appeal, the defendant does not preserve that issue for review. State v. Dahl, 2022 ND 212, ¶ 9, 982 N.W.2d 580.

[¶19] Simpson concedes that although he moved for acquittal under N.D.R.Crim.P. 29 at trial arguing insufficient evidence to sustain convictions on six of the seven charges, he did not argue that “based on the charging document and the essential elements, the presented evidence could necessarily only sustain one attempted murder charge.” He, however, argues this Court should review for obvious error.

[¶20] This Court retains discretion to review unpreserved issues of insufficient evidence for obvious error. Dahl, 2022 ND 212, ¶ 12. Under obvious error review, the appellant has the burden to establish obvious error by showing: (1) error, (2) that is plain, and (3) that affects substantial rights. Aune, 2021 ND 7, ¶ 14. “To affect substantial rights, a plain error must have been prejudicial, or have affected the outcome of the proceeding.” Id. (quoting State v. Wegley, 2008 ND 4, ¶ 14, 744 N.W.2d 284). Under the obvious error framework, the first inquiry is whether an error occurred. Id.

[¶21] To establish obvious error, Simpson asserts the evidence showed he only fired two rounds during the incident; and given the finite number of shots, the evidence is insufficient to support convictions on three of the four attempted murder charges as not enough rounds were fired to satisfy the “specific intention” of “firing multiple rounds upon” a specifically named officer. He contends the “mathematical impossibility” of firing only two rounds upon four named officers creates insufficient evidence for three of the four convictions. He argues the error is “plain” as a “clear deviation” from an applicable rule of current law that each element of an offense must be proved beyond a reasonable doubt. Simpson contends the general verdicts provide no indication which officer the jury determined “received the two available rounds,” making it “impossible to determine” which conviction of the four is supported by sufficient evidence. He thus contends all four attempted murder convictions must be reversed.

[¶22] The State responds that Simpson failed to establish the “error” prong for obvious error because sufficient evidence supports the jury's verdicts. The State notes we said in State v. Keller, 2005 ND 86, ¶ 46, 695 N.W.2d 703, that “a person can be convicted of attempted murder for having taken a substantial step toward commission of the crime of murder even if there never was, in fact, a substantial risk of serious bodily injury or death to another,” and that discharging a firearm is not a required element of attempted murder. The State argues sufficient evidence supports Simpson took a substantial step toward murdering the four officers; the number of rounds fired is immaterial; and drawing all reasonable inferences in favor of the jury's verdicts, Simpson's actions suggest he would have continued firing upon the officers had his firearm not jammed.

[¶23] On our review of the record, Simpson has not shown an error. As already discussed, the district court's closing jury instructions provided the essential elements for attempted murder, including the definition of substantial step. “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.” N.D.C.C. § 12.1-06-01(1). Regardless of whether he fired two or three shots, testimony established Simpson took a substantial step when he fired “multiple shots” upon Essig, Rebel, Wright, and Green. For example, on cross-examination, Wright testified:

Q. Okay. My understanding from earlier testimony is [Green] immediately goes behind the other vehicle. Do you remember that?

A. I guess I can't speak to what Green immediately did.

Q. But you said he was back there with you?

A. Everyone, to a degree, was behind the vehicle when I was back there, or in the area behind the vehicle.

Q. Now was everybody back there when those shots were fired?

A. Somewhere in the vicinity of the back of the vehicle. Whether they're exposed or not I don't know.

The State also provided other evidence supporting Simpson's specific intent, including a victim's testimony—who had been in a relationship with Simpson—that Simpson indicated to her that if she ever called the police, “there would be a shootout [with the police] and he'd kill them.”

[¶24] We also note courts in other circumstances have upheld attempted murder convictions with fewer shots fired than the number of charges. For example, in People v. Smith, the California Supreme Court held evidence was sufficient to support two counts of attempted murder despite only a single bullet being fired into a vehicle because a rational jury could find beyond a reasonable doubt defendant intended to kill a baby and the mother. 124 P.3d 730, 732-34, 744 (Cal. 2005). The evidence showed the mother, known to defendant, was driving; her baby was in a car seat directly behind her; and each were in defendant's line of fire when he fired a single round at them from behind the car as it pulled away. Id. at 732. “The bullet shattered the rear windshield, narrowly missed both the mother and baby, passed through the mother's headrest, and lodged in the driver's side door.” Id.; see also People v. Chinchilla, 60 Cal. Rptr. 2d 761, 762 (Cal. Ct. App. 1997) (holding evidence supported attempted murder convictions for two different victims when intent to kill the two victims could be inferred from evidence the defendant fired a single shot at the two victims, both of whom were visible to the defendant); State v. Sharp, 661 A.2d 1333, 1334-35 (N.J. Super. Ct. Law Div. 1993) (holding sufficient evidence existed for a reasonable jury to convict defendant of attempted murder of two police officers based on a single shot fired in the direction of the officers); cf. People v. Valencia, 342 Cal. Rptr. 3d 297, 308 (Cal. Ct. App. 2026) (holding, in the context of assault with a firearm, “[t]he number of convictions need not equal or be fewer than the number of shots fired”).

[¶25] Considering our deferential standard of review, viewing the evidence and all reasonable inferences in the light favorable to the verdict, a rational factfinder could have found Simpson guilty beyond a reasonable doubt when evidence showed he fired two or three rounds toward the officers before his firearm jammed; retreated around a shop building; cleared the jam; put another bullet in the chamber; and surrendered only when he saw the SWAT vehicle. A reasonable jury could find Simpson acted with the purpose of killing the four officers and endangered their lives by pointing the gun at the officers and pulling the trigger; Simpson's total disregard for the officers’ safety showed an intent to kill the officers; and Simpson's conduct established the requisite “substantial step,” “strongly corroborative of the firmness of [his] intent,” by pointing the loaded gun at the officers, pulling the trigger multiple times, and reloading the gun before finally surrendering. On this record, Simpson has not met his burden to establish error, so there can be no obvious error.

IV

[¶26] While not raised by the parties, we note the criminal judgment provides that Simpson was “[f]ound guilty” on counts 1 through 7, “[p]led [g]uilty” on counts 8 through 14, and also “[p]led [g]uilty” on count 15. As the counts are charged in the Information and listed in the Criminal Judgment, Simpson pled guilty on counts 1, 2, 3, 4, 5, 6, 7, and 15, and the jury found him guilty on counts 8, 9, 10, 11, 12, 13, and 14. With the exception of count 15, it appears a clerical error has occurred in designating which counts Simpson pled guilty to, and on which counts the jury found him guilty. We order the clerk of district court to correct the clerical error in the criminal judgment. N.D.R.App.P. 35(b)(1)(A) (noting this Court may modify a judgment); see also N.D.R.App.P. 35, Explanatory Note (explaining generally only a sentencing court may correct an illegal sentence or a clerical error in a sentence, but this rule confirms the supreme court has discretion to correct a criminal sentence when the error is clear from the record).

V

[¶27] We affirm the criminal judgment. We, however, order the clerk of district court to correct a clerical error in the judgment.

FOOTNOTES

1.   At trial, counts 8-14 were listed in the jury instructions as counts 1-7, presumably to avoid confusion of the jury or prejudice to the defendant.

2.   The State suggests the opening instructions’ inclusion of the charged offenses in the Information was “seemingly in place of the state's attorney's or clerk's reading of the information as required in N.D.C.C. § 29-21-01(1).” We note Simpson has not raised an issue regarding compliance with N.D.C.C. § 29-21-01.

Fair McEvers, Chief Justice.

[¶28] Lisa Fair McEvers, C.J. Jerod E. Tufte Jon J. Jensen Douglas A. Bahr Daniel J. Crothers, S.J.[¶29] The Honorable Daniel J. Crothers, S.J., sitting in place of Friese, J., disqualified.