Prosecutors have filed new charges against a man whose murder conspiracy convictions were overturned by the North Dakota Supreme Court.
Cody Borner, 26, was charged Friday in Mercer County with seven Class C felony charges — terrorizing, aggravated assault, and five counts of reckless endangerment.
South Central District Judge Gail Hagerty set bond for Borner at $250,000 cash. He remains in the custody of the Mercer County jail.
A jury in June 2012 found Borner, of Stanton, and Richard Whitman, of Hazen, guilty of two counts each of conspiracy to commit murder in the shooting death of Michael Padilla and the shooting of Timothy Padilla.
Borner and Whitman, 31, were accused of entering a Beulah apartment on Jan. 31, 2012, with loaded weapons in an attempt to steal drugs. In an ensuing struggle, Michael Padilla was killed and Timothy Padilla was injured.
The North Dakota Supreme Court on Aug. 29 reversed Borner’s convictions. In the split decision, three of the five justices ruled that the language used in charging documents in the case was improper.
Under North Dakota law, people can be found guilty of murder if they are found to have caused the death of another person under circumstances manifesting extreme indifference to the value of human life. The charges against Borner and Whitman accused them of agreeing "with one another to knowingly engage in or cause circumstances manifesting extreme indifference to the value of human life."
However, the Supreme Court ruled that someone cannot conspire to commit extreme indifference murder.
"An individual cannot intend to achieve a particular offense that by its definition is unintended," said the opinion, written by Justice Mary Muehlen Maring. Justices Daniel Crothers and Carol Ronning Kapsner joined Maring in the opinion.
The Supreme Court has not issued an opinion in Whitman’s case, which was argued within a week of Borner’s.
The court also ruled that prosecutors could recharge Borner under language allowed by North Dakota law, leading to the new charges filed Friday.
The terrorizing charge against Borner is in reference to allegations he entered an apartment armed with an AR-15 while wearing a mask, and the aggravated assault charge is for allegedly striking Michael Padilla in the head with the AR-15. The five reckless endangerment charges are for allegedly endangering the lives of Michael Padilla, Timothy Padilla, Shirley Padilla, Hailie Padilla and Avalino Lopez, all of whom were in the Padillas’ Beulah apartment.
McLean County State’s Attorney Ladd Erickson, who is prosecuting the case for Mercer County, said the charges filed Friday were the best options available in the case after the Supreme Court decision, which “rewrote the murder statute.”
Erickson said the original case against Borner and Whitman was based on a Burleigh County case that the Supreme Court upheld in 2005. In that case, Brandon Keller was convicted of attempted murder, conspiracy to commit murder and reckless endangerment for repeatedly shooting at police during a 14-hour standoff in a mobile home park in Bismarck in August 2003.
Prosecutors used the same language to charge Borner and Whitman as had been upheld in the Keller case. Erickson said the high court’s decision in Borner’s appeal left prosecutors without other options to charge Borner with an offense under the homicide statute.
Erickson said the other issue prosecutors dealt with in recharging Borner was that Whitman’s case is still pending, and if Whitman’s also is overturned, the cases may have to be tried together.
“These cases were joined, and we don’t know what (will happen) with Whitman,” Erickson said.