North Dakota criminal-attempt defense guide
Criminal Attempt in North Dakota
A North Dakota attempt charge is not proved by a bad idea, criminal intent standing alone, or conduct that merely looks suspicious after the fact. Section 12.1-06-01 requires a specifically identified target crime, the culpability that crime otherwise requires, intentional conduct, and a substantial step that strongly corroborates firm intent to complete that crime. A separate theory covers conduct intended to aid another person. Grading follows the target offense, subject to express reductions, and voluntary, complete renunciation may create an affirmative defense or, in a narrow student setting, immunity.
You will work directly with me.
I identify the exact target offense and its elements, isolate the conduct the State calls a substantial step, reconstruct the complete sequence, and test whether that conduct truly corroborates firm intent to complete the crime. I also examine the charged mental states, intended-aid theory, impossibility, renunciation, student immunity, offense grading, dangerous-closeness sentencing issue, included offenses, searches, device evidence, undercover communications, and alternative lawful explanations.
Begin with the target crime, then test the alleged step
| Issue | Required proof | Defense focus |
|---|---|---|
| Target crime | A specifically designated crime capable of attempt under governing law. | Elements, definitions, offense date, and whether the target is cognizable. |
| Target culpability | The kind of culpability otherwise required for the target crime. | Apply the correct mental state to each target element and circumstance. |
| Intentional conduct | The person intentionally engages in the conduct said to be the substantial step. | Purpose to perform that conduct, not accident, mistake, or mere presence. |
| Substantial step | Conduct that in fact strongly corroborates firm intent to complete the target crime. | Specific act, context, lawful alternatives, distance from completion, and corroborative force. |
- Intent is not the act
- Thoughts, statements, or motive do not replace the required substantial-step conduct.
- No last-act requirement
- The statute asks for strong corroboration, not completion of every remaining step.
- Impossibility rule
- Factual or legal impossibility is no defense only when the crime could occur under circumstances as believed.
- Renunciation
- Current law recognizes a demanding affirmative defense and a separate narrow student immunity.
Official statutory framework
Substantial step and dangerous closeness answer different questions: substantial step is a guilt-stage element. Whether a class B or C felony attempt failed to come dangerously close is a separate sentencing issue that can reduce the classification.
Attempt does not exist in the abstract
An information should identify the target crime and the act alleged to be the substantial step. “Attempted criminal conduct” or intent to do something unlawful is not enough. The target statute supplies the prohibited result, conduct, circumstances, definitions, victim status, value, age, quantity, weapon, consent, or other facts that distinguish one offense from another. Those elements also determine whether attempt is logically and legally possible.
Map each target element before evaluating the attempt
For attempted theft, the property, owner, value, deception or taking theory, and intent to deprive may matter. For attempted burglary, the structure, privilege to enter, entry conduct, and intended offense inside matter. For attempted delivery, transfer conduct matters; possession with intent to deliver is a different charge. For attempted intentional murder, intent to kill is essential. A generic statement that the accused “intended a crime” cannot substitute for this element-by-element map.
The target offense may itself include attempted conduct
Some definitions, such as controlled-substance “delivery,” already include an attempted transfer. In State v. Brown, the State added section 12.1-06-01 to a delivery definition that already included attempted transfer, creating a charge of taking a substantial step toward an attempted transfer. That layering made the actual transfer-related evidence central. The defense should examine whether the target statute already includes attempt, a preparatory act, or a separate inchoate theory before accepting the prosecution’s label.
Offense-date law controls
The target statute, attempt statute, grading rules, definitions, and renunciation provisions must be checked as of the alleged conduct. Later amendments may change elements, classifications, defenses, or student immunity. The filing date or trial date does not replace the offense date for substantive criminal law.
The alleged conduct must strongly corroborate firm intent to finish
Name the act
The State should specify the purchase, travel, entry, payment, communication, targeting, possession, surveillance, or other conduct.
Measure corroboration
The act must strongly support firm intent to complete the particular target crime.
Test context
Timing, sequence, capability, tools, lawful purpose, conditions, and what remained undone can change the inference.
Separate sentencing
Dangerous closeness can affect grading later without changing the substantial-step element.
Preparation can become a substantial step, but labels do not decide when
Researching a location, discussing a plan, purchasing an ordinary item, traveling, possessing a tool, arranging a meeting, or approaching a place can be innocent, preparatory, or strongly corroborative depending on the target crime and complete sequence. The question is not whether the act happened “before completion”—every attempt does. The question is whether the act itself, in fact and in context, strongly corroborates firm intent to complete the charged offense.
Intent evidence and step evidence overlap but remain distinct
A detailed confession can powerfully prove intent but does not automatically identify qualifying conduct. Conversely, conduct close to a prohibited result may be ambiguous without proof of its purpose. Messages, searches, maps, photographs, purchases, financial transactions, location history, surveillance, disguise, weapons, tools, target selection, rehearsals, warnings, and abandonment evidence should be placed on one timeline to determine what each proves.
Brown illustrates charge-specific proof
State v. Brown, 2025 ND 86, arose from dismissal at a preliminary hearing. A task-force officer described a cocaine quantity typical for distribution, but officers found no controlled buy, pay-owe sheets, large cash, or other transfer evidence. The Supreme Court concluded that possession—even possession supporting an inference of intent to deliver—was not evidence of an actual, constructive, or attempted transfer for the attempted-delivery count as charged. The case does not announce that possession can never support any attempt. It requires proof tied to the target offense and alleged step.
Intervention by police does not automatically defeat attempt
Once an intentional substantial step exists, interruption, arrest, an unavailable victim, a nonfunctioning object, or an undercover operation may not erase liability. But early intervention does not relieve the State of proving that the conduct had already crossed the statutory line. The timing of surveillance, controlled communications, warrants, arrest, and seizure can therefore be decisive.
Intentional substantial-step conduct does not cure an impossible target theory
The conduct constituting the step must be intentional
The person must purposely engage in the conduct alleged as the substantial step. Accidentally arriving at a location, unknowingly possessing another person’s item, making an ambiguous statement, or inadvertently transmitting data does not satisfy that requirement without proof of purpose. The State must also prove the culpability otherwise required for the target offense and intent to complete it.
Attempt cannot be built from a target defined by unintended harm
In Dominguez v. State, the Supreme Court held attempted extreme-indifference murder noncognizable because that homicide theory describes an unintentional death from willful extreme-indifference conduct, while attempt requires intent to complete the crime. In State v. Richter, the Court held attempted reckless promotion of obscenity to minors noncognizable. The State could not create a valid charge simply by proposing to prove a higher mental state than the target statute used.
Attempted murder requires intent to kill
Pemberton v. State held attempted “knowing” murder noncognizable and reversed because the instruction permitted conviction without requiring intent to cause death. State v. Vervalen later confirmed attempted intentional murder remains a crime. The distinction is not wordplay: the attempt instruction must require intentional conduct constituting a substantial step toward intentionally causing death, and the proof must support intent to kill.
Some targets with mixed mental states require element-specific analysis
An offense may require intentional conduct as to one element, knowledge as to a circumstance, and recklessness as to another. Section 12.1-06-01 says the actor must intentionally engage in substantial-step conduct while acting with the culpability otherwise required for the crime. Stensaker and Richter caution against saying that any reckless target automatically supports attempt merely because intentional step conduct is alleged. The target definition and controlling construction must be examined precisely.
A person can face attempt liability for trying to help another commit a crime
Section 12.1-06-01(2) addresses conduct intended to aid another. Liability exists when the conduct would establish complicity under section 12.1-03-01 if the other person committed the target crime. The statute expressly allows liability even if the other person is not guilty of committing or attempting the crime, including because the other person has a justification or entrapment defense.
The principal’s completion is not an element of this theory
In State v. Gunn, the accused exchanged extensive electronic messages instructing another person how to groom and sexually assault children. The Supreme Court rejected the argument that the other person had to complete gross sexual imposition. The jury still had to find conduct that commanded or aided and intent that the target offense be committed. Electronic speech can be conduct under the statute, but context, identity, meaning, intent, fantasy or role-play evidence, target facts, and constitutional limits remain part of the analysis.
Complicity supplies additional structure
The incorporated complicity statute reaches causing another to engage in conduct with target-offense culpability, or intentionally commanding, inducing, procuring, or aiding another to commit the offense. It also addresses a statutory duty to prevent an offense. Mere association, knowledge of another’s plan, presence, approval, or failure to intervene without a legal duty does not automatically establish the incorporated theory.
Distinguish attempt from facilitation, solicitation, and conspiracy
Chapter 12.1-06 defines separate offenses. Facilitation requires knowing substantial assistance and actual commission of the contemplated or a related felony using that assistance. Solicitation focuses on commanding, inducing, entreating, or otherwise attempting to persuade. Conspiracy requires an agreement and an overt act. Section 12.1-06-05 states that the chapter’s inchoate definitions do not apply to another offense also defined within sections 12.1-06-01 through 12.1-06-04, preventing automatic stacking of attempt onto another inchoate offense as though each were an ordinary target crime.
The statute asks what could have happened under circumstances as believed
Section 12.1-06-01 says factual or legal impossibility is not a defense if the crime could have been committed had the attendant circumstances been as the actor believed. Common examples may involve an empty pocket, an undercover officer posing as a buyer, a substance believed to be contraband, a person believed to have a protected status, or property the actor believes belongs to another.
The statutory condition matters
The impossibility sentence is not a declaration that every mistaken belief is criminal. The intended conduct must amount to the target crime if the relevant circumstances were as the accused allegedly believed. If the completed objective would not be an offense even under those believed facts, or if the State cannot prove the belief and intent attributed to the accused, the condition is not satisfied.
Capability and impossibility are related but not identical
A nonfunctioning tool, intercepted package, fictitious victim, or police-controlled setting may inform both impossibility and whether conduct strongly corroborates intent. The defense should not concede the substantial-step element merely because the statute forecloses a particular impossibility argument. The State still must prove intentional conduct, a qualifying step, firm intent, and every required target circumstance as believed.
Stopping can matter, but fear of detection or delay is not enough
General affirmative defense
Under section 12.1-06-05(3), voluntary and complete renunciation is an affirmative defense to attempt when the accused avoided commission of the target crime by abandoning all criminal effort and, if abandonment alone could not prevent completion, took further affirmative steps that prevented it. Returning a weapon, retrieving a package, warning an intended victim, cancelling an instruction, notifying law enforcement, disabling a mechanism, or stopping another participant may be relevant depending on what was already set in motion.
Renunciation must be voluntary and complete
It is not voluntary and complete if motivated in whole or in part by belief that detection or apprehension has become more likely, or that completion has become more difficult. It also fails when the decision is only to postpone the conduct, substitute another victim, or pursue a similar objective. A person who stops because police arrive, a camera is discovered, the victim resists, tools fail, or the risk increases may have evidence of noncompletion without satisfying renunciation.
Current student immunity is separate
Section 12.1-06-05(4) provides immunity from prosecution under chapter 12.1-06 when all current requirements are met: voluntary and complete renunciation; enrollment in an elementary, middle, or high school or an institution of higher education in North Dakota; a contemplated offense that would harm a listed student or school employee or damage covered school property; and disclosure to a law-enforcement officer, school administrator, or institution official before harm or damage occurs. Current text does not state an under-twenty-one limit. Earlier versions differed, making the offense date essential.
Document the renunciation itself
Messages, call logs, location data, returned items, warnings, reports, screenshots, witnesses, emergency calls, and time stamps can show when the decision occurred, why it occurred, what was communicated, and whether the accused actually prevented the result. A later claim of changed mind is far weaker than contemporaneous conduct that reverses the plan and protects the potential victim.
Attempt grading follows a specific ladder
| Target offense | Attempt classification | General maximum |
|---|---|---|
| Class AA felony | Class A felony | 20 years and/or $20,000 |
| Class A felony | Class B felony | 10 years and/or $20,000 |
| Class B felony | Class B felony, or class C felony if lack of dangerous closeness is established at sentencing | 10 years/$20,000, or 5 years/$10,000 after reduction |
| Class C felony | Class C felony, or class A misdemeanor if lack of dangerous closeness is established at sentencing | 5 years/$10,000, or 360 days/$3,000 after reduction |
| Class A misdemeanor | Class A misdemeanor | 360 days and/or $3,000 |
| Class B misdemeanor | Class B misdemeanor | 30 days and/or $1,500 |
The class B and C reductions use a sentencing standard
For attempted class B and class C felonies, subsection 3 permits a one-level reduction when it is established by a preponderance of the evidence at sentencing that the conduct did not come dangerously close to completing the crime. The statute does not use “dangerously close” to define guilt. A jury may find a substantial step while the sentencing record still supports lack of dangerous closeness.
The maximum is not the expected sentence
The court’s decision can involve criminal history, target harm, victim impact, weapon or planning facts, role, number of counts, plea terms, restitution, treatment needs, offense-specific mandatory provisions, and concurrent-or-consecutive authority. Section 12.1-06-01 does not impose one mandatory minimum for all attempts. The target statute may carry consequences or sentencing rules that require separate analysis.
Completed offense and included-offense questions are case specific
North Dakota’s definition of included offense expressly includes an attempt to commit the charged offense. That definition affects notice and potential lesser alternatives, but an attempt instruction is not automatic; the evidence must support it under current procedural law. When completed and attempted counts arise from the same course, convictions and punishment require a count-specific analysis of statutory elements, distinct acts, legislative intent, and double-jeopardy law rather than a promise that every attempt “merges.”
Preserve the complete digital sequence
Messages, deleted-message recovery, searches, browser history, maps, drafts, cloud records, photographs, location data, app logs, device extractions, financial transactions, and account metadata can establish—or undermine—identity, intent, target, timing, and the alleged step. Preserve native exports and forensic images rather than screenshots alone.
Obtain the government’s operation record
Undercover communications, informant instructions, controlled buys, warrants, affidavits, surveillance logs, recordings, evidence inventories, chain of custody, payment authorization, and agent reports can reveal inducement, missing context, disputed identity, intervention timing, and whether the charged target matched the operation.
Document lawful explanations
Receipts, work assignments, travel purpose, hobbies, licenses, prior ownership, unrelated communications, witnesses, routine practices, medical records, and complete conversations may explain conduct the State presents selectively. A lawful explanation must be tested against the whole record, not asserted without support.
Build a renunciation timeline
Identify the first change of course, reason, recipient of any warning, recovery or disposal of tools, instructions sent to others, steps taken to protect a target, police or school notification, and whether the plan was truly abandoned rather than delayed.
The best analysis separates purpose, conduct, target elements, and classification
I begin by writing the target offense element by element and identifying the mental state attached to each. Then I identify the single act or sequence the State says was the substantial step. I compare the act with all evidence of lawful purpose, equivocation, capability, interruption, and what remained undone. This prevents a dramatic allegation or disturbing message from silently replacing the conduct element.
Next I determine whether the target offense is cognizable as an attempt, whether the State improperly layered attempt over a definition that already includes attempted conduct, and whether the direct or intended-aid theory actually matches the charge. I assess impossibility under the circumstances the accused allegedly believed, not as a slogan. If withdrawal occurred, I test every renunciation or student-immunity requirement and preserve contemporaneous proof.
Finally, I separate guilt from grading. The class follows the statutory ladder, while lack of dangerous closeness may reduce certain felony attempts at sentencing. Search and interrogation challenges, evidence authentication, expert analysis, included offenses, multiple counts, restitution, immigration and licensing effects, and plea terms must be evaluated before anyone treats the maximum as a likely outcome.
Frequently asked questions about criminal attempt
Is planning a crime enough for attempt?
Not by itself. The State must prove intentional conduct that in fact constitutes a substantial step strongly corroborative of firm intent to complete a specifically identified crime. Planning evidence may establish intent and may combine with later acts, but a thought or plan alone is not the statutory conduct element.
How close must the person come to completing the crime?
The guilt-stage test is strong corroboration, not a fixed number of steps or a universal last-act rule. “Dangerously close” appears separately at sentencing and can reduce an attempted class B felony to class C or an attempted class C felony to a class A misdemeanor when lack of dangerous closeness is established by a preponderance.
Can someone attempt a reckless or negligent crime?
Not merely because the person intentionally performed some conduct. Dominguez, Pemberton, Stensaker, and Richter require intent to complete the target crime and reject attempt theories that depend on an inherently unintended result or only reckless conduct. The exact target elements and mental states must be examined.
What if completion was impossible?
Factual or legal impossibility is not a defense if the target crime could have been committed under circumstances as the accused believed them to be. The State still must prove the accused held the alleged belief, intended the target crime, and intentionally took a substantial step. If the objective would not be a crime even under the believed facts, the statutory condition is not met.
Can trying to help another person create attempt liability?
Yes. Under subsection 2, conduct intended to aid another is attempt when it would establish complicity if the crime were committed. Gunn holds that the other person need not actually complete or attempt the target crime. The State still must prove intent, qualifying conduct, and the incorporated complicity elements.
Does changing your mind erase an attempt?
Not automatically. The general affirmative defense requires voluntary and complete renunciation, avoidance of the target crime by abandoning all criminal effort, and further affirmative prevention when abandonment alone is insufficient. A decision motivated by increased detection or apprehension risk, increased difficulty, postponement, or substituting another victim does not qualify.
How is an attempt classified?
Generally it shares the target crime’s class. Attempted class AA becomes class A felony, and attempted class A becomes class B felony. Class B and C felony attempts ordinarily keep the target class but may drop one level at sentencing if lack of dangerous closeness is established. Misdemeanor attempts generally retain the misdemeanor class.
What should be reviewed before accepting a plea?
Review the target statute and offense date, every target element, charged attempt theory, exact substantial step, intent and target culpability, cognizability, impossibility facts, complete digital and physical evidence, searches and statements, renunciation, grading, dangerous closeness, included offenses, other counts, sentencing exposure, and collateral consequences.
Authorities and source verification
This guide uses current official North Dakota statutes, an official 2025 Supreme Court opinion, and reported North Dakota Supreme Court decisions interpreting attempt. The target crime and alleged offense date determine what additional authority must be checked.
- N.D.C.C. ch. 12.1-06 — attempt elements, intended aid, grading, impossibility, renunciation, and student immunity.
- N.D.C.C. § 12.1-03-01 — complicity incorporated by subsection 2.
- N.D.C.C. § 12.1-01-04 — definitions, including included offense.
- N.D.C.C. § 12.1-32-01 — general class ceilings.
- State v. Brown, 2025 ND 86 — substantial-step proof tied to attempted delivery.
- Dominguez v. State, 2013 ND 249 — intent to complete and noncognizable extreme-indifference attempt.
- State v. Richter, 2021 ND 100 — reckless target offense and intentional substantial-step conduct.
- State v. Gunn, 2018 ND 106 — intended-aid attempt and no principal-completion requirement.
- State v. Vervalen, 2024 ND 124 — attempted intentional murder.
- Pemberton v. State, 2021 ND 85 — attempted knowing murder is noncognizable.
A lawyer’s file review of Criminal Attempt in North Dakota
Most bad early advice comes from answering the charge label instead of reading the charging clause. I begin with the operative count and work outward: definitions, exceptions, enhancement facts, evidence, procedure, and only then possible outcomes.
Read the count as a set of propositions the State must prove
To understand Criminal Attempt in North Dakota, I start with N.D.C.C. §§ 12.1-06-01, 12.1-06-05, 12.1-03-01, 12.1-01-04, and 12.1-32-01 and the version of the law in effect on the alleged date. The offense classification sets the outer framework, but it does not tell us what happened or what the state can prove. I then identify every fact that could change the charge or sentence and look for the record, testimony, or forensic evidence that supports—or contradicts—each one.
From there, I build a proof map. For every required element, I identify the witness, recording, document, test result, or admissible inference the prosecution would rely on, then compare that source with the rest of the file. This separates a disputed fact from a search, statement, or admissibility issue and keeps the analysis focused on problems that can actually affect the case.
The evidence I would ask for first
For Criminal Attempt in North Dakota, I would not begin with a canned list of defenses. I would begin with the source file: the charging paper, every police report, uncut recordings, witness interviews, warrants and returns, device and account records, photographs with metadata, expert or laboratory material, certified prior records, court orders, and any document the prosecution relies on to prove an element or increase the classification. A police summary can identify what an officer or witness says happened, but it cannot substitute for the recording, photograph, data, or document being summarized. The same is true of a complaint. It identifies the prosecution’s theory at the start of the case; it does not prove the theory.
I put those materials on one chronology. That lets me see what was known at each decision point, which account was contemporaneous, what appeared only after people spoke with one another, and where the record is silent. It also keeps an admissibility question separate from a factual one. A fact can be disputed even if the evidence was lawfully obtained. Evidence can also be accurate yet inadmissible for a particular purpose. Those are different arguments and should not be blurred together.
Read the charging document against the offense date
The alleged date matters because statutes, penalty thresholds, definitions, sentencing rules, and published decisions change. I save the version in force on that date and read the session-law history when the current online text is different. I also check whether a later amendment was merely clarifying or made a substantive change; that is a legal question, not an assumption. The same discipline applies to prior convictions and administrative events. A prior must fit the definition the charged statute actually uses, fall within any stated lookback period, and be proved by a reliable record.
I then compare the formal count with the probable-cause narrative and the discovery. If the prosecution’s theory shifts, I want the amended pleading and enough detail to prepare. If several factual alternatives are alleged, I identify whether they are separate elements, alternative means, enhancement facts, or merely evidentiary details. That distinction affects notice, motions, jury instructions, unanimity arguments, and how a verdict form should be read.
Separate an evidentiary weakness from a suppression issue
Not every troubling fact produces a motion to suppress. Suppression ordinarily requires a constitutional, statutory, or rule-based violation with a remedy that reaches the evidence at issue. A weak identification, an incomplete investigation, or a witness inconsistency may be powerful at trial without making evidence inadmissible. By contrast, a stop, search, interrogation, identification procedure, warrant, or test can raise a legal issue even when the resulting evidence appears incriminating. I analyze both tracks and do not promise dismissal simply because one problem exists.
For a search issue, I reconstruct what officers knew before each intrusion and what authority they claimed. For a statement, I examine custody, questioning, warnings, voluntariness, recording, and the complete context. For scientific or technical evidence, I request the method, underlying data, quality-control material, uncertainty information, and chain of custody. For hearsay or confrontation questions, I identify the actual statement, its purpose, the declarant, and the proposed foundation. Specificity matters; “the evidence is bad” is not a motion.
Prepare negotiation and trial at the same time
A plea decision should be compared with the case the State could present at trial, not with the complaint’s maximum penalty in isolation. I want to know the strongest admissible proof, the weakest required element, the realistic motion practice, the likely instructions, and the consequences of every proposed disposition. That includes custody, probation, treatment, restitution, driving, firearm restrictions, registration, employment or licensing, immigration consultation, family-court effects, and record consequences when they are actually triggered. I avoid telling a client that every collateral consequence applies to every conviction.
Trial preparation gives negotiation its credibility. Witness interviews, exhibit review, motions in limine, expert consultation, demonstrative evidence, jury instructions, and a clean theory of the case force both sides to confront what can be proved. Negotiation can continue while that work is underway. The two tracks are not opposites.
A case-law point worth keeping in its proper place
Appellate decisions matter, but a quotation should not be detached from the issue the court was deciding. In State v. Hartson, 2024 ND 78, ¶ 26, the North Dakota Supreme Court explained that, on a sufficiency challenge, “we do not weigh conflicting evidence, or judge the credibility of witnesses.” That is an appellate-review rule, not a reduction of the State’s burden at trial. At trial, the prosecution still must prove every element beyond a reasonable doubt. I cite the case for the point it actually decided and then return to the charged statute, the instructions, and the admissible evidence in the present file.
What I would want you to understand before choosing an outcome
You should be able to identify the exact charge, the facts that set its level, the disputed elements, the evidence that matters most, the motions that have a legal basis, the realistic trial issues, and the concrete effect of each proposed resolution. If an answer depends on a missing report, recording, expert opinion, or certified record, I will say so. An honest answer about what remains unknown is more useful than a confident guess.