State v. Lail

937 N.W.2d 558

STATE of North Dakota, Plaintiff and Appellee

v.Alexander Blake LAIL, Defendant and Appellant

No. 20190058

Supreme Court of North Dakota.

Filed January 23, 2020

Kathleen K. Murray, State’s Attorney, Fessenden, ND, for plaintiff and appellee.

Kiara C. Kraus-Parr, Grand Forks, ND, for defendant and appellant.

VandeWalle, Justice.

[¶1] Alexander Lail appealed from a criminal judgment entered upon a jury verdict finding him guilty of two counts of attempted murder. Lail argues there was insufficient evidence to support the guilty verdicts. We affirm.

I

[¶2] When a defendant challenges the sufficiency of the evidence, "we review the record to determine whether there is sufficient evidence that could allow a jury to draw a reasonable inference in favor of the conviction." State v. Rai , 2019 ND 71, ¶ 13, 924 N.W.2d 410 (citing State v. Truelove , 2017 ND 283, ¶ 7, 904 N.W.2d 342 ). "This Court does not reweigh conflicting evidence or judge the credibility of witnesses." Id. "[T]he defendant ‘bears the burden of showing the evidence reveals no reasonable inference of guilt when viewed in the light most favorable to the verdict.’ " Id. "A jury may find a defendant guilty even though evidence exists which, if believed, could lead to a verdict of not guilty." State v. Christian , 2011 ND 56, ¶ 8, 795 N.W.2d 702 (quoting State v. Wanner , 2010 ND 121, ¶ 9, 784 N.W.2d 143 ). "A ‘[r]eversal is warranted only if, after viewing the evidence and all reasonable evidentiary inferences in the light most favorable to the verdict, no rational factfinder could have found the defendant guilty beyond a reasonable doubt.’ " State v. Keller , 2005 ND 86, ¶ 50, 695 N.W.2d 703 (quoting City of Jamestown v. Neumiller , 2000 ND 11, ¶ 5, 604 N.W.2d 441 ).

II

[¶3] Lail’s convictions stem from his attempts at hiring two individuals to kill his wife, Donna Lail, and his former employee, Tyler Schnase. The following evidence was adduced at trial. Alex and Donna Lail were married in 2004 in California. They moved to New Rockford, North Dakota, in 2012 and started Central Plains Restoration, a home restoration business. Shortly after moving to North Dakota, their marriage began to deteriorate. Alex and Donna separated, and Donna moved to Fessenden, North Dakota. In August 2016, Donna filed for divorce.

[¶4] Lail continued to operate Central Plains Restoration after Donna Lail had filed for divorce. In July or August 2016, Lail hired Michael Kanwischer to perform miscellaneous work for Lail such as cleaning carpets and spraying ditches. Kanwischer had an extensive criminal history, including spending seven years in the South Dakota State Penitentiary, and was in and out of work. Kanwischer grew up in Fessenden and lived there most of his life. A short time after Kanwischer began working for Lail, Lail told Kanwischer he was getting a divorce and asked "how far [Kanwischer] was willing to go to make money." Lail asked Kanwischer if he could "take out" his wife because, having lived there most of his life, Kanwischer was familiar with Fessenden and the surrounding area and knew where Donna lived in Fessenden. Lail never described the house that Donna lived in to Kanwischer, but Kanwischer testified Lail did not have to because he was familiar with the area and knew which house Donna lived in.

[¶5] Lail also asked Kanwischer if he could kill Tyler Schnase. Lail wanted Schnase killed because he "knew too much." Lail was indicated in other criminal activity that Lail believed would adversely affect the outcome of his divorce. Schnase had knowledge of and informed law enforcement officers about this criminal activity. Lail brought Kanwischer to Schnase’s home and told Kanwischer that was where Schnase lived. Lail told Kanwischer he wanted Donna Lail and Tyler Schnase killed by using the gas line to "blow up" their homes with them inside. Lail offered Kanwischer $35,000 to kill Donna and $20,000 to kill Schnase, but never paid Kanwischer any money. Kanwischer testified that he believed Lail would be able to pay him because Kanwischer was aware that Lail owned property in Florida and California. In total, Lail discussed killing Donna and Schnase with Kanwischer on four different occasions. Lail told Kanwischer he wanted them killed before his divorce was finalized so Donna would not be awarded Central Plains or any of Lail’s property through the divorce. Kanwischer accepted Lail’s offer, but told Lail it would take time to plan and execute Lail’s request. Kanwischer never took steps to kill either Donna or Schnase, but he never told Lail he would not kill them. And Lail never told Kanwischer to not follow through on his requests.

[¶6] Tyler Schnase was also a former employee of Lail’s. After Schnase had reported Lail’s criminal activity to law enforcement officers, Schnase and his girlfriend constantly observed Lail near Schnase’s residence and at all hours of the day and night. On one occasion, Lail had been cleaning the house across the street from Schnase’s throughout the afternoon and into the evening. After dark, Schnase left his residence in his vehicle. While driving away, Schnase witnessed Lail and another individual walk across the street towards Schnase’s home in his rearview mirror. Schnase drove around the block and shined his lights on his home, where he witnessed Lail and the other individual in his driveway. Lail and the other individual ran back to the house across the street. And on two occasions, Schnase witnessed Lail parked in Schnase’s driveway while Schnase was not home. Schnase’s girlfriend was also present during one of these encounters.

[¶7] In the summer of 2016, Lail began dating Deanna Neurohr. Neurohr lived in Harvey, North Dakota, in the same apartment building as Michael Kanwischer. Lail would frequently stay at Neurohr’s apartment. While staying with Neurohr, Lail made several comments that he wanted Donna Lail and Tyler Schnase killed because of the pending divorce. Lail told Neurohr he wanted their homes burned down with them inside. Neurohr overheard multiple conversations between Lail and Kanwischer about killing Donna and Schnase, including one conversation in which Kanwischer told Lail he went and "staked out" Donna’s home in Fessenden. Lail also told Neurohr he had attached a GPS tracking device to Donna’s vehicle and showed Neurohr an app on his phone that displayed the device’s location. At one point, the device had fallen off Donna’s vehicle. Lail went and retrieved the device from the farmer who had found the device in the ditch outside his farmstead.

[¶8] In December 2016, Jason Saxer began working for Central Plains. In addition to being an employee at Central Plains, Saxer would travel with Lail to Minot and assist him in picking up cars. During one of their trips to Minot, Saxer told Lail he knew people in the Mafia. Lail asked Saxer how much it would cost to "take care of somebody." Lail told Saxer he wanted to find a way to "get rid of" Donna Lail so he could have the business to himself. Lail told Saxer he was concerned Donna would be awarded the business in the divorce. Saxer understood Lail’s questioning to mean he wanted Donna killed. Saxer told Lail it would cost approximately $5,000. Lail and Saxer never further discussed hiring someone from the Mafia to kill Donna, and Saxer never contacted anyone about killing Donna. On a separate occasion, Lail traveled with Saxer to Donna’s house in Fessenden and mentioned to Saxer that he wanted Donna’s house burned down. Saxer understood Lail was implying whether Saxer could burn the house down or if he knew someone that would.

[¶9] Law enforcement officers had been investigating Lail on other criminal matters during the summer of 2016. In July 2016, Donna Lail and her daughter found thumb drives and a notebook belonging to Lail that contained website passwords. On the thumb drives were tracking logs, and one of the websites in the notebook was a website used for tracking people. The thumb drives and notebook were turned over to law enforcement officers as part of their investigation. Lail was arrested on April 25, 2017, after officers learned of Lail’s attempts at hiring Kanwischer and Saxer to murder Donna and Schnase. While being detained, Lail attempted to send a note to Donna reading, "Dear Donna, I had no idea that some crazy bastard (Mike) had went to the police telling them some bizarre story." The note was intercepted by jail security. In the documents relating to the investigation of Lail, Mike Kanwischer was referred to as a "source"; his name was never mentioned.

[¶10] Lail was subsequently charged with and convicted by a jury of two counts of attempted murder.

III

[¶11] Lail contends there was insufficient evidence for a jury to infer Lail took a substantial step toward the commission of murder. 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. Factual or legal impossibility of committing the crime is not a defense, if the crime could have been committed had the attendant circumstances been as the actor believed them to be.

The culpability required for murder is intentionally or knowingly causing the death of another human being. N.D.C.C. § 12.1-16-01(1)(a). Therefore, " ‘[t]he offense of attempted murder requires the defendant to take a substantial step toward committing the crime of attempting to intentionally or knowingly cause the death of another ....’ " Keller , 2005 ND 86, ¶ 47, 695 N.W.2d 703 (quoting State v. Ellis , 2001 ND 84, ¶ 15, 625 N.W.2d 544 ). However, "a person can be convicted of attempted murder for having taken a substantial step toward commission of the crime...