State v. Simpson (2026 ND 87): Closing Jury Instructions Control “Substantial Step”; Multiple Attempted-Murder Convictions May Stand Despite Limited Shots

1. Introduction

In State v. Simpson, the North Dakota Supreme Court affirmed convictions arising from a SWAT arrest attempt at the defendant’s workplace. Jeffrey Jacob Simpson, Jr. was tried on seven counts connected to the March 22, 2024 incident: four counts of attempted murder (one for each of four officers) and three counts of reckless endangerment. The jury convicted on all seven. On appeal, Simpson argued (1) the four attempted-murder verdicts were legally inconsistent and “compromised,” and (2) the evidence was insufficient—raising the issue under “obvious error” because his trial preservation was incomplete.

The Court’s central clarifications are practical and recurring in criminal trials: (a) what constitutes the “law of the case” for verdict-consistency and element-proof analysis when a charging document includes factual particulars not repeated in the elements instructions; (b) how “substantial step” operates in attempted-murder prosecutions involving a small number of shots and multiple intended victims; and (c) how waiver and obvious-error review constrain appellate attacks on jury instructions and sufficiency theories not properly preserved.

2. Summary of the Opinion

The Court affirmed the convictions, holding:

  • The verdicts were not legally inconsistent because the “substantial step” element was defined by the closing jury instructions (tracking N.D.C.C. § 12.1-06-01), not by descriptive allegations in the Information repeated in opening instructions.
  • There was sufficient evidence for four attempted-murder convictions even if Simpson fired only two or three rounds, because the State need not prove a particular number of shots per victim; it must prove intent to kill and a substantial step toward killing each named officer.
  • The Court ordered correction of a clerical error in the criminal judgment mislabeling which counts were found guilty by jury versus pled guilty.

3. Analysis

3.1. Precedents Cited

Verdict consistency and reconciliation

  • State v. Villazana, 2024 ND 211: Provided the governing framework—review asks whether a verdict is “legally inconsistent,” and unchallenged jury instructions become the “law of the case.” Simpson relied on “opening instructions” and charging language; the Court relied on Villazana to center the analysis on the elements instructions actually given.
  • State v. McClary, 2004 ND 98 and State v. Jahner, 2003 ND 36: Supported the Court’s reluctance to impose “strict standards of logical consistency” and emphasized that inconsistency exists when verdicts cannot be rationally reconciled under the instructions and evidence.
  • State v. Aune, 2021 ND 7: Reinforced the reconciliation method (examining law and case facts) and also supplied the “obvious error” standard later used in the sufficiency discussion.
  • State v. Coppage, 2008 ND 134 (quoting State v. Cole, 542 N.W.2d 43): Supplied the definition: verdicts are legally inconsistent when proof of one offense negates a necessary element of another. The Court used this concept to show Simpson’s “finite shots” argument did not create an element-negation conflict among the four attempted-murder counts.

Attempted murder: intent-to-kill requirement

  • State v. Vervalen, 2024 ND 124 (quoting Pemberton v. State, 2021 ND 85): Reaffirmed that “attempted ‘knowing’ murder is a non-cognizable offense,” so the State must prove intent to kill for attempted murder. This mattered because Simpson’s appellate theory tried to convert “firing multiple rounds upon him” (charging detail) into an element; the Court kept the focus on intent + substantial step as instructed.
  • State v. Keller, 2005 ND 86: Supported the point that attempted murder can be proven by a substantial step even if there was not, “in fact,” a substantial risk of death—underscoring that the crime targets the defendant’s intent and corroborative conduct, not a tally of bullets per victim.

Jury instructions as law of the case; waiver

  • State v. Guthmiller, 2025 ND 162 (quoting State v. Johnson, 2021 ND 161): Anchored the rule that unchallenged instructions become the law of the case. The Court used these cases to reject Simpson’s attempt to treat opening recitations of the Information as controlling elements.
  • State v. Studhorse, 2024 ND 110, State v. Houle, 2022 ND 96, State v. Yoney, 2020 ND 118, and State v. Vervalen, 2024 ND 124: These collectively supported the Court’s conclusion that Simpson waived any claim that the attempted-murder instructions should have incorporated the Information’s “multiple rounds” language, because defense counsel explicitly agreed he was satisfied with the jury instructions.

Sufficiency of evidence; preservation; obvious error

  • State v. Rodriguez, 2020 ND 261: Provided the standard sufficiency review and emphasized that a Rule 29 motion is required to preserve sufficiency issues for appeal.
  • State v. Dahl, 2022 ND 212: Clarified that when a Rule 29 motion is made on some grounds but not the ground pressed on appeal, that theory is unpreserved—yet the Court retains discretion to review for obvious error.
  • State v. Wegley, 2008 ND 4 (quoted in State v. Aune, 2021 ND 7): Supplied the requirement that obvious error must be prejudicial and affect the outcome. The Court never reached prejudice because it found no “error” at step one.

Persuasive out-of-state authority on multiple victims and limited shots

  • People v. Smith, 124 P.3d 730; People v. Chinchilla, 60 Cal. Rptr. 2d 761; State v. Sharp, 661 A.2d 1333: Cited to illustrate a widely accepted principle: a single shot (or limited shots) can support multiple attempted-murder convictions when the factfinder can infer intent to kill multiple people within the line of fire or targeted group.
  • People v. Valencia, 342 Cal. Rptr. 3d 297: Used by analogy to emphasize that “number of convictions” need not match “number of shots,” reinforcing the Court’s rejection of Simpson’s “mathematical impossibility” framing.

3.2. Legal Reasoning

(A) Why the verdicts were not legally inconsistent

Simpson’s core “inconsistency” theory depended on treating the Information’s phrasing—“by firing multiple rounds upon him in close range”—as an element that must be satisfied separately for each officer. The Court rejected that premise based on how juries are instructed and how elements are defined at deliberation.

  1. Elements come from the closing instructions, not the charging narrative. The Court held that the closing instructions defined “substantial step” using the statutory formulation: “any conduct that tends toward but falls short of actual commission and is strongly corroborative of the firmness of the actor’s intent.” That definition did not require “multiple rounds” per victim.
  2. “Law of the case” was the unobjected-to elements instruction. Because Simpson agreed he was satisfied with the instructions, those instructions became the governing law for analyzing inconsistency and proof. This mirrored State v. Villazana, where an information alleged firearm use but the elements instruction did not require it.
  3. No element-negation among counts. Under Coppage, legal inconsistency exists where proof of one offense negates an element of another. Here, finding Simpson took a substantial step toward killing Officer A does not negate that he also took a substantial step toward killing Officers B, C, and D. The factual overlap (same shooting episode) does not create legal incompatibility.

(B) Why the evidence was sufficient (and no obvious error occurred)

Simpson’s sufficiency argument repackaged the same premise—finite bullets cannot support four attempt counts. The Court’s response tracked the statutory elements and the deferential sufficiency standard: the question is whether a rational factfinder could find intent to kill and a substantial step for each count, viewing evidence in the light most favorable to the verdict.

  1. Discharging a gun is not the only “substantial step.” Even accepting limited rounds fired, the Court emphasized corroborative conduct: drawing the handgun, firing toward the officers, retreating to clear a jam, chambering a new round, and surrendering only upon the SWAT vehicle’s approach. Those actions could be viewed as strongly corroborative of intent to continue firing.
  2. Intent to kill multiple officers was inferable. The record included testimony about Simpson’s prior statements about a “shootout” and killing police, and trial testimony suggesting officers were clustered “in the vicinity” when shots were fired. This supported the inference of intent directed at the group of officers, not merely at a single individual.
  3. No “mathematical impossibility” rule applies to attempt. By citing People v. Smith, People v. Chinchilla, and State v. Sharp, the Court endorsed the principle that a limited number of shots can support multiple attempted-murder counts if intent toward multiple victims can be found beyond a reasonable doubt.
  4. Obvious-error analysis failed at step one. Because the Court found no error in concluding the evidence satisfied the instructed elements, Simpson could not satisfy “plainness” or prejudice.

(C) Clerical-error correction

Independently, the Court noticed the judgment misdesignated which counts were jury convictions versus guilty pleas. Invoking N.D.R.App.P. 35(b)(1)(A), it directed the clerk to correct the judgment to align with the record. This portion is a reminder that appellate courts may order correction of clear record-based clerical mistakes even if not raised by the parties.

3.3. Impact

  • Charging detail vs. element proof: Prosecutors often include narrative specifics in informations (“by doing X”). Simpson reinforces that such specifics do not automatically become elements unless incorporated into the jury’s elements instructions (or otherwise made essential by law). For defense counsel, it underscores that if a “means” allegation is strategically valuable as a constraint on proof, it must be litigated through instruction objections and requested special-verdict structure, not argued post-verdict as an “inconsistency.”
  • Multiple attempted-murder counts in a single volley: The decision supports charging and sustaining multiple attempt counts where a defendant fires toward (or otherwise targets) a group, so long as evidence permits intent-to-kill findings as to each victim and the defendant’s conduct constitutes a corroborative “substantial step.”
  • Waiver doctrine teeth: The Court’s reliance on counsel’s express approval of the instructions shows North Dakota’s strong waiver approach: agreeing to instructions can foreclose later reframing of the elements on appeal.
  • Preservation matters for sufficiency theories: A Rule 29 motion must be aligned with the specific sufficiency theory later asserted; otherwise review may be confined to discretionary obvious-error analysis, which is difficult to satisfy.

4. Complex Concepts Simplified

Legally inconsistent verdict
Not merely “hard to square” factually; it generally means the verdicts cannot stand together under the elements the jury was instructed to apply—typically because proving one count would negate an element of another.
Law of the case (jury-instruction context)
If neither side properly objects, the final jury instructions become the operative “law” for evaluating the verdict and evidence on appeal—even if the information alleged additional factual details.
Substantial step
In attempt crimes, the State need not prove completion of the offense. It must prove conduct that goes beyond preparation and strongly corroborates the defendant’s intent to complete the crime. In shootings, this can include aiming, firing, clearing a jam, reloading, and positioning to continue the attack.
Waiver vs. forfeiture
Waiver is the intentional relinquishment of a known right (e.g., affirmatively approving instructions). Forfeiture is a failure to object. Waiver generally bars appellate relief more strongly.
Obvious (plain) error review
A narrow safety valve for unpreserved issues: the appellant must show (1) error, (2) plainness, and (3) prejudice affecting substantial rights. If no error occurred, the analysis ends.

5. Conclusion

State v. Simpson (2026 ND 87) solidifies that, for attempted-murder prosecutions and verdict-consistency analysis in North Dakota, the controlling “substantial step” requirement is the one given in the closing elements instructions (tracking N.D.C.C. § 12.1-06-01), not descriptive phrasing in the Information repeated during opening instructions. It further confirms that multiple attempted-murder convictions may be sustained even where only a limited number of shots are fired, so long as the evidence supports intent to kill each named victim and corroborative conduct constituting a substantial step toward each killing. Finally, the case highlights the practical consequences of instruction waiver and the steep climb of obvious-error review for unpreserved sufficiency theories.