N.D. Supreme Court hears appeal arguing insufficient evidence and nonunanimous robbery verdict

At an oral argument before the North Dakota Supreme Court, appellate counsel for Cody Lee Little Ghost argued that the robbery conviction should be reversed because the trial record does not show the specific intent required for an accomplice-to-theft charge and because jury instructions left unclear which theft the robbery verdict referred to, creating a risk the jury returned a nonunanimous verdict.

The appeal centers on three convictions and one acquittal from a Cass County jury: Little Ghost was acquitted of criminal mischief (count 4) but convicted on three other counts the brief characterizes as robbery (count 1), accomplice to theft (count 2, alleged to concern a Jeep), and theft of debit cards (count 3). Appellate counsel told the court the defense had moved for acquittal under Rule 29 at the close of the state's case but the trial court denied that motion and sent the issues to the jury.

Appellate counsel argued that, on the accomplice-to-theft charge, the state presented no evidence showing Little Ghost had the specific intent to aid or facilitate the theft (an element the defense says is required). Counsel said the state’s closing suggested that Little Ghost’s assault on the victim was sufficient to establish accomplice liability, but that physical presence and violence alone do not prove the requisite intent to assist a theft.

Counsel also pressed the court on the jury instructions, saying the instructions and the information were unclear about which underlying theft the robbery charge referenced. The instructions quoted in the record place the charged conduct on Aug. 1, 2023, in Cass County and refer to “willfully inflicted bodily injury on [the victim’s] face,” but appellate counsel said the record does not make clear whether the robbery finding rested on the theft of the vehicle or on the theft of the victim’s wallet and debit cards. Counsel warned that, because the verdict form was a general guilty verdict, the result could reflect a split jury (some jurors finding robbery based on the vehicle theft, others based on the wallet/debit-card theft), which would violate the unanimity requirement for felony convictions.

The defense acknowledged that preservation is an issue: counsel said the Rule 29 motion at trial was a blanket motion and that defense did not preserve a separate objection to the jury instructions, so the court must consider whether plain-error (referred to in argument as “obvious error”) review applies. Appellate counsel cited the court’s prior decision in Gaddy for guidance on when the charging information and instructions suffice to protect unanimity, but argued the record here is not sufficiently specific.

The factual summary in argument placed Little Ghost and a co-defendant at a bar and later in a Jeep with the victim. After an altercation around 3:52 a.m., the co-defendant drove away in the Jeep and was later found with the vehicle in Minneapolis; Little Ghost was later found in Fargo. The co-defendant pleaded guilty and was not called by the state at Little Ghost’s trial, counsel noted. The victim’s testimony about where his wallet had been differed from Little Ghost’s account, the defense said, creating conflicting evidence on the debit-card theft charge.

Appellate counsel told the justices: “There’s only two issues before the court today. The first issue is whether the district court erred in denying his motion for acquittal, his Rule 29. And then the second issue is whether the jury instructions were improper.” The court asked questions about preservation, unanimity, and whether the information or closing arguments provided enough clarity to avoid nonunanimity.

The court took the case under advisement. The justices recessed the oral-argument session and announced the court would adjourn until 2:15 p.m. for a rules conference; no decision was issued at the hearing.

Background: the record excerpts discussed during argument show the state’s theory at closing emphasized that Little Ghost’s assault aided the theft(s), while the defense insists the record contains no evidence of intent to assist in stealing the vehicle and that the robbery charge could instead be tied to the wallet/debit-card theft. The appeal thus raises both evidentiary sufficiency and constitutional-unanimity questions on how juries must be instructed and how verdicts are recorded in cases with multiple possible factual bases for a single offense.