State v. Lail

Citation: 2020 ND 13Docket: 20190058

Court: North Dakota Supreme Court; January 22, 2020; North Dakota; State Supreme Court

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Alexander Blake Lail was found guilty of two counts of attempted murder related to his attempts to hire individuals to kill his wife, Donna Lail, and a former employee, Tyler Schnase. Lail appealed the conviction, arguing insufficient evidence supported the jury's verdict. The Supreme Court of North Dakota affirmed the lower court's decision, emphasizing that when evaluating the sufficiency of evidence, the court does not reweigh evidence or assess witness credibility but instead determines if a reasonable inference of guilt exists based on the evidence presented. The court noted that the defendant bears the burden of proving that no reasonable inference of guilt can be made when viewing evidence favorably toward the verdict. 

The evidence revealed that Lail and Donna were married in 2004 and moved to North Dakota in 2012, where they started a home restoration business. Their marriage deteriorated, leading to separation and Donna filing for divorce in August 2016. Despite the divorce proceedings, Lail continued to operate the business and hired Michael Kanwischer, who had a criminal history, for various tasks. Lail allegedly solicited Kanwischer to kill Donna, leveraging Kanwischer's familiarity with the area where she lived, although Lail did not provide specific details about her residence.

Lail solicited Kanwischer to kill Tyler Schnase, fearing Schnase’s knowledge of Lail's criminal activities would affect Lail's divorce proceedings. Lail indicated he wanted both Schnase and his estranged wife, Donna Lail, killed by blowing up their homes, offering Kanwischer $35,000 for Donna and $20,000 for Schnase. Although Kanwischer accepted the proposition, he never initiated any action to carry out the killings and did not inform Lail that he would not proceed. Lail's intention was to eliminate them before the divorce was finalized to prevent Donna from receiving property.

Schnase, aware of Lail's threats, observed Lail lurking near his home and reported Lail’s criminal behavior to law enforcement. Schnase witnessed Lail and another person trespassing in his driveway, creating a pattern of intimidation.

In 2016, Lail began dating Deanna Neurohr, with whom he shared his desire to kill Donna and Schnase, stating he wanted their homes burned down. Neurohr overheard Lail discussing these plans with Kanwischer and noted Lail had placed a GPS tracking device on Donna's vehicle.

Later, Lail discussed with Jason Saxer, a Central Plains employee, the cost of hiring someone to kill Donna, expressing his concern over losing the business in the divorce. Saxer interpreted Lail's inquiries as a request for murder but did not pursue the matter further. Lail also suggested burning Donna's house down during a visit with Saxer, implying he wanted assistance with the act.

Law enforcement began investigating Lail in summer 2016 for various criminal activities. In July 2016, Lail's mother and daughter discovered thumb drives and a notebook belonging to him, which contained website passwords and tracking logs, including a site for tracking individuals. These items were submitted to law enforcement. Lail was arrested on April 25, 2017, after attempting to hire Kanwischer and Saxer to murder his mother and Schnase. While detained, Lail tried to send an intercepted note to his mother claiming he was unaware of a report made by Mike to the police. Lail was charged and convicted of two counts of attempted murder.

Lail argued that the evidence was insufficient to establish that he took a substantial step toward committing murder, as defined under N.D.C.C. 12.1-06-01(1). The statute stipulates that a person is guilty of criminal attempt if they act with the required intent and engage in conduct that constitutes a substantial step toward the crime. A substantial step is conduct that strongly corroborates the actor's intent. Legal impossibility is not a defense if the crime could have occurred under the actor’s believed circumstances. The required culpability for murder involves intentionally or knowingly causing death.

Case law indicates that a person can be convicted of attempted murder even if there was no substantial risk of serious bodily harm. The substantial step requirement prevents convictions based solely on expressed criminal intent, with the determination of whether the accused acted sufficiently being a factual question. Other jurisdictions have clarified that taking a substantial step is more than mere preparation but less than the final act needed to commit the crime. An example from Connecticut illustrates this, where a defendant's actions to hire a hitman were deemed substantial enough for a jury to find an attempted murder charge warranted.

Urcinoli, while incarcerated, attempted to hire fellow inmate MacPhee for the murders of his aunt and uncle, offering $5,000 and providing detailed information about the victims and plans for the murders. The New Jersey Supreme Court determined that Urcinoli's actions constituted substantial steps toward committing murder. In contrast, Molasky's conversations about killing two individuals while incarcerated lacked sufficient specificity and concrete arrangements, leading the Missouri Supreme Court to conclude that they did not amount to substantial steps. The court emphasized that solicitation alone, without corroborative acts, does not meet the threshold for attempt charges, but noted that solicitation could potentially serve as a substantial step if accompanied by other actions.

In the current case, Lail solicited Kanwischer and Saxer to kill Donna Lail and Tyler Schnase, discussing detailed plans that included using a gas line for an explosion. Lail offered significant payments, and Kanwischer, familiar with the area, did not need specific directions for Donna, although Lail did show him where Schnase lived. Lail's recruitment of Saxer was due to his Mafia ties. Neither Kanwischer nor Saxer acted on the requests or communicated refusal. Lail also took steps to track Donna by affixing a GPS to her vehicle and was frequently seen near Schnase’s property. After his arrest, Lail's note suggested knowledge of the investigation, implying awareness of his involvement with law enforcement inquiries.

Lail engaged in actions aimed at intentionally causing the deaths of Donna Lail and Tyler Schnase, which went beyond mere discussions of murder and included concrete steps towards committing the crime. In murder for hire cases, actions that could reasonably lead to the execution of the murder constitute a substantial step towards the crime. Lail’s solicitation and involvement in planning the murder were significant actions indicating intent. Despite Lail's arguments, he could not demonstrate that the evidence failed to support a reasonable inference of guilt when considered favorably to the verdict. The evidence presented was adequate for a jury to find Lail guilty of attempted murder beyond a reasonable doubt. The criminal judgment is affirmed.