Background
On March 22, 2024, a SWAT team arrived at Jeffrey Simpson’s workplace to arrest him for violent felonies committed the prior month. Intelligence indicated Simpson possessed a handgun and had threatened to “shoot it out with police.” When officers approached and repeatedly commanded him to show his hands, Simpson instead grabbed a handgun and opened fire, discharging two or three rounds before his weapon jammed. He retreated to a nearby building, cleared the malfunction, chambered another round, and fired once into the ground before surrendering when a SWAT vehicle approached.
The State charged Simpson with fifteen counts arising from incidents in February and March 2024. He pleaded guilty to eight counts — including burglary, domestic violence, terrorizing, felonious restraint, criminal mischief, and drug possession — and proceeded to a four-day jury trial on four counts of attempted murder (one count per officer present) and three counts of reckless endangerment. The jury returned guilty verdicts on all seven trial counts.
On appeal, Simpson raised two principal arguments: (1) that the jury’s verdict was legally inconsistent because the same two fired rounds could not simultaneously constitute the “substantial step” of “firing multiple rounds upon” four separately named officers, and (2) that the evidence was insufficient to sustain four attempted murder convictions when he fired only two rounds.
The Court’s Holding
The North Dakota Supreme Court affirmed all convictions. On the inconsistent-verdict claim, the court held that the operative legal standard came from the district court’s closing jury instructions — which defined “substantial step” in the statutory terms of conduct “strongly corroborative of the firmness of the actor’s intent to complete the commission of the crime” — not from the language of the charging information recited in the opening instructions. Because Simpson’s counsel affirmatively approved the closing instructions without objection, any argument that “firing multiple rounds upon” each named officer was a required element was waived. The verdicts were therefore legally consistent: a rational jury could find Simpson took substantial steps to kill each of the four officers based on his overall conduct.
On the sufficiency-of-evidence claim, reviewed only for obvious error because Simpson failed to preserve the precise argument at trial, the court found no error. The number of rounds fired is not a required element of attempted murder under North Dakota law; a substantial step does not require that a shot actually be fired at all. The court drew on testimony establishing that all four officers were in the vicinity when Simpson fired, evidence of his prior threat to kill police, and his post-jam conduct — clearing the malfunction and rechamering a round before surrendering — as collectively sufficient for a rational jury to find intent to kill each officer beyond a reasonable doubt. The court also cited persuasive authority from California and New Jersey upholding multiple attempted murder convictions based on fewer shots than victims.
The court additionally noted, sua sponte, that the criminal judgment contained a clerical error reversing which counts were resolved by guilty plea and which by jury verdict, and ordered the district court clerk to correct the record accordingly.
Key Takeaways
- Under North Dakota law, the charging information’s factual recitation does not define the essential elements of an offense — the closing jury instructions govern, and unchallenged instructions become the law of the case.
- Attempted murder requires proof of intent to kill and a substantial step toward that end; the actual firing of a bullet — let alone one bullet per victim — is not a required element, meaning a single volley can support multiple counts.
- A defendant who affirmatively approves jury instructions when given the opportunity to object waives any later challenge to those instructions, including on appeal.
- Courts may sustain multiple attempted murder convictions even when the number of shots fired is fewer than the number of charged victims, if evidence supports the requisite intent as to each.
Why It Matters
This decision clarifies how North Dakota courts should reconcile a charging document’s factual allegations with the jury instructions’ legal definitions when the two are not identical. Defense counsel should pay close attention to whether the closing instructions track — or narrow — the language of the information, since approving those instructions forecloses later attacks on what the jury was required to find. Prosecutors, in turn, can draw confidence that a single episode of gunfire directed at multiple officers will support individual attempted murder counts for each, so long as evidence of individualized intent is presented.
The ruling also reinforces a broad, majority-rule principle that attempted murder is an intent-based offense and that a firearm’s mechanical failure does not defeat the charge. Defendants who fire on a group of officers and then reload cannot escape multiple convictions simply by arguing the bullet count was insufficient.