dissenting.
[¶ 31] Consistent with United States Supreme Court decisions interpreting the federal conspiracy law from which North Dakota law derives, I would affirm the conspiracy to commit murder convictions of Cody Borner and Richard Whitman. *393Even if the new law announced by the majority were correct, we should affirm because the defendants, who never raised the issue in the trial court, cannot establish the necessary plain error. That is, they would have to establish that the district court failed to follow clearly established North Dakota case law, and they cannot do so.
[¶ 32] The United States Supreme Court has said the intent required for conspiracy conviction is the degree of criminal intent necessary for the underlying offense itself. Thus, when the underlying offense requires that the defendant “willfully engage in or cause circumstances manifesting extreme indifference to the value of human life” to commit murder under those circumstances, that is the intent required for conspiracy to commit the offense.
[¶ 33] An interim legislative committee worked from the Final Report of the National Commission on Reform of Federal Criminal Laws when drafting North Dakota’s new criminal code, which became effective July 1, 1975. It is essential to remember that the Final Report was a proposal to change the existing federal criminal law. The convictions of Borner and Whitman are consistent with the then-existing federal criminal law. Further, the Final Report carefully identified the changes it proposed to existing federal criminal law, and it identified no change as far as the required intent is concerned.
[¶ 34] The majority looks to the Model Penal Code and decisions of some states and says more is required. But the drafters of the proposed Federal Criminal Code did not follow the Model Penal Code in this area, and, as discussed below, the majority’s consideration as to other states is flawed.
[¶ 35] The majority concedes that our law on conspiracy to commit murder is ambiguous — that is, its meaning is not clearly established. This is crucial because the defendants did not object to the charge before trial, during trial, or during the seven days after the verdict, so to subsequently prevail on any challenge to the charge itself, the defendants would have to show it was contrary to clearly established case law, and they cannot do so.
[¶ 36] I, therefore, respectfully dissent.
I
[¶ 37] In this case it was alleged and established that Borner and Whitman conspired to engage in conduct manifesting extreme indifference to the value of human life and that the result of their conduct was the death of one person and serious bodily injury to another. The State’s position is that proof of the conspiracy to commit murder under these circumstances requires that the conduct be intended — an express or implied agreement to engage in the conduct — but that the result of the conduct — death—need not be intended. Murder committed by conduct manifesting extreme indifference to the value of human life requires only that the conduct be intended, not that the resulting death of anyone be intended. The majority says more is required, that the conspirators must intend that death occur. The United States Supreme Court’s ruling on conspiracy cases is consistent with the State’s view, not the majority’s view. In affirming a conspiracy conviction, the United States Supreme Court stated:
Our decisions establish that in order to sustain a judgment of conviction on a charge of conspiracy to violate a federal statute, the Government must prove at least the degree of criminal intent necessary for the substantive offense itself. Ingram v. United States, 360 U.S. 672, 678 [79 S.Ct. 1314, 3 L.Ed.2d 1503] (1959). See Pettibone v. United States,
*394148 U.S. 197 [13 S.Ct. 542, 37 L.Ed. 419] (1893). Respondent Feola urges upon us the proposition that the Government must show a degree of criminal intent in the conspiracy count greater than is necessary to convict for the substantive offense; he urges that even though it is not necessary to show that he was aware of the official identity of his assaulted victims in order to find him guilty of assaulting federal officers, in violation of 18 U.S.C. § 111, the Government nonetheless must show that he was aware that his intended victims were undercover agents, if it is successfully to prosecute him for conspiring to assault federal agents. And the Court of Appeals held that the trial court’s failure to charge the jury to this effect constituted plain error.
United States v. Feola, 420 U.S. 671, 686-87, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975) (emphasis added). In Feola, the underlying offense, assaulting federal officers (undercover narcotics agents) in the performance of their official duties, required intentional assault but not the intent to assault federal officers. Thus conspiracy to assault federal officers required only the agreement to the conduct of assaulting certain individuals but did not require intent of the consequences that it was federal officers who were assaulted. This supports the State’s view that it is the conduct that must be intended, not the result of the conduct.
[¶ 38] In Ingram v. United States, 360 U.S. 672, 678, 79 S.Ct. 1314, 3 L.Ed.2d 1503 (1959), the United States Supreme Court said that because the substantive offense of willful evasion of federal income taxes required a showing of knowledge that tax was due, conviction of conspiracy to commit that offense required that knowledge as well. The Court said, “Conspiracy to commit a particular substantive offense cannot exist without at least the degree of criminal intent necessary for the substantive offense itself.” Id. (quotation omitted). This supports the State’s view that it is the conduct that must be intended, not the result of the conduct.
[¶ 39] The majority, at ¶ 19, cites United States v. Chagra, 807 F.2d 398, 401 (5th Cir.1986), for the proposition that “an ‘intent to kill’ is an essential element of conspiracy to commit second-degree murder.” But in addition to holding that the crime of conspiracy to second degree murder exists (is a cognizable offense), the Fifth Circuit notes that under the controlling statute, “the substantive offense of second degree murder requires proof of an intentional killing with malice aforethought.” Chagra, 807 F.2d at 401. Therefore, the offense of conspiracy to commit second degree murder requires the same state of mind, “intentional killing with malice aforethought.” The Fifth Circuit held that “ ‘to sustain a judgment of conviction on a charge of conspiracy to violate a federal statute, the Government must prove at least the degree of criminal intent necessary for the substantive offense itself.’” Id. (quoting Feola, 420 U.S. at 686, 95 S.Ct. 1255). This supports the State’s view that it is the conduct that must be intended, not the result of the conduct that must be intended.
[¶ 40] The majority, at ¶ 19, cites United States v. Croft, 124 F.3d 1109, 1121-22 (9th Cir.1997), for the proposition that “ ‘intent to kill’ is an essential element of conspiracy to commit second-degree murder.” The case supports the proposition that “intent to kill” is necessary for conspiracy in cases in which conviction of second degree murder requires an “intent to kill.” This is consistent with the State’s view.
[¶ 41] In United States v. Parker, 165 F.Supp.2d 431 (W.D.N.Y.2001), the court said:
*395Where a conspiracy to commit a particular crime is charged, it is necessary to allege that the co-conspirators agreed with the same degree of criminal intent required for the object crime. Feola, 420 U.S. at 686, 95 S.Ct. 1255 (1975) (citing cases). Accordingly, the Supreme Court has stated that “a greater degree of intent for conspiratorial responsibility than for responsibility for the underlying substantive offense” is not required. Id. at 688, 95 S.Ct. 1255. Therefore, as knowledge of the government’s ownership of the property alleged to have been stolen in violation of § 641 is not required, such knowledge is also irrelevant to the intent necessary to establish a conspiracy to commit such a theft in violation of 18 U.S.C. § 341 as alleged in Count II.
Id. at 462 (emphasis added).
[¶42] The court denied dismissal of a charge of conspiracy to steal government property when the defendants conspired to do the act of stealing even though they neither knew the property belonged to the government nor intended the consequence of stealing government property.
[¶ 43] The courts have said there can be conspiracy to violate an individual’s civil rights when defendants intended the conduct but did not specifically intend to violate civil rights. See, e.g., United States v. Brown, 49 F.3d 1162, 1165 (6th Cir.1995) (“The United States need not prove that the defendant actually knew it was a constitutional right being conspired against or violated.”).
II
[¶ 44] Conspiracy is a somewhat amorphous charge with multiple definitions. Some definitions view conspiracy as occurring at a single moment, when the agreement is reached. Other definitions view conspiracy as an ongoing enterprise. Our North Dakota statute has elements of both; the crime does not happen at any single moment.
[¶ 45] The majority says, at ¶ 12:
Conspiracy is an inchoate crime that is completed upon an agreement and an “overt act in pursuance of the conspiracy by any party thereto.” 2 Wayne R. LaFave, Substantive Criminal Law § 12.1(c), at 263 (2d ed.2003) (footnotes omitted).
This does not appear to be a complete summary of what LaFave says. LaFave does say:
But, as suggested above, conspiracy cannot be viewed solely as an inchoate crime. If it were, then it would hardly make sense to say that it “is an offense of the gravest character, sometimes quite outweighing, in injury to the public, the mere commission of the contemplated crime,” nor would it be sensible to allow punishment for both the conspiracy and its criminal object.
2 Wayne R. LaFave, Substantive Criminal Law § 12.1(c), at 264 (2d ed.2003) (emphasis added). LaFave describes the other main function of conspiracy as “a sanction against group activity.” Id. The nature of a conspiracy as an on-going, planned-out group activity makes it more dangerous than the true inchoate offenses of solicitation and attempt, and justifies liability for both the completed crime and the conspiracy.
[¶ 46] Under North Dakota law, “[a] conspiracy shall be deemed to continue until its objectives are accomplished, frustrated, or abandoned.” N.D.C.C. § 12.1-06-04(3). “ ‘Objectives’ includes escape from the scene of the crime, distribution of booty, and measures, other than silence, for concealing the crime or obstructing justice in relation to it.” N.D.C.C. § 12.1-06-04(3); State v. Coutts, 364 N.W.2d 88, *39691 (N.D.1985). Although the crime of conspiracy is complete upon agreement and an overt act in pursuance of the conspiracy, the conspiracy itself continues until “its objectives are accomplished, frustrated, or abandoned.”
Ill
[¶ 47] Although the majority appears to view murder as several different offenses, in North Dakota, murder is a single offense that may be committed in multiple ways. Our current law, effective in 1975, abandoned our state’s previous separation into first and second degree murder and eliminated the requirement for “premeditated design” and “evincing a depraved mind.” See N.D.C.C. ch. 12-27 (repealed effective July 1, 1975) and N.D.C.C. § 12.1-16-01; see also A Hornbook to the North Dakota Criminal Code, 50 N.D. L.Rev. 639, 687-89 (1974). These are important distinctions and will be discussed further in part V, ante, when I discuss what I believe are certain errors in the majority’s analysis.
[¶ 48] Section 12.1-16-01(1), N.D.C.C., provides, in part:
A person is guilty of murder, a class AA felony, if the person:
b. Causes the death of another human being under circumstances manifesting extreme indifference to the value of human life.
[¶ 49] The American Law Institute (“ALI”), in Tentative Draft No. 9 of the Model Penal Code under Sections 201.1-201.6, Criminal Homicide, raised the question: “Should homicides committed recklessly under circumstances manifesting extreme indifference to the value of human life be treated as murder, as was the case at common law and as the draft provides in Section 201.2(l)(b)?” Model Penal Code Questions on Tentative Draft No. 9 Suggested for Discussion at Annual Meeting, at xii (Tentative Draft No. 9 1959). The ALI, in section 201.2(l)(b), proposed:
Except as provided in Section 201.3(l)(b), criminal homicide constitutes murder when it is committed recklessly under circumstances manifesting extreme indifference to the value of human life.
Model Penal Code § 201.2 at 28 (Tentative Draft No. 9 1959). The ALI commented:
Insofar as the draft includes within the murder category cases of homicide caused by extreme recklessness, though without purpose to kill or even injure, it reflects both the common law and much explicit statutory treatment usually cast in terms of conduct evidencing a “depraved heart regardless of human life” or some similar words. Examples usually given include shooting into a crowd, an occupied house or an occupied automobile, though they are not of course exhaustive.
Id. at 29 (emphasis added) (footnotes omitted).
[¶ 50] Later, in 1970, in its Study Draft of a new Federal Criminal Code, the National Commission on Reform of Federal Criminal Laws commented:
This section provides for only a single class of murder, replacing the definition in 18 U.S.C. § 1111. The degree system, originally an important and useful method of discriminating between capital and non-capital murder, has broken down with the decline of capital punishment and the blurring of the distinction between the terms “deliberate and premeditated” and “intentional.”
National Commission on Reform of Federal Criminal Laws, Study Draft of a New Federal Criminal Code § 1601 (1970) (emphasis added). The commission’s proposed language abandoned the Model Pe*397nal Code’s distinction between differing degrees of murder and proposed only a single murder offense with multiple subsections. Section 1601(b) of the draft provides:
A person is guilty of a Class A felony if he causes the death of another human being under circumstances manifesting extreme indifference to the value of human life.
Id.
[¶ 51] In 1971, the Final Report of the National Commission on Reform of Federal Criminal Laws formally adopted similar language found in the study draft in its comment to its section on murder.
This section provides for only a single class of murder, replacing the definition in 18 U.S.C. § 1111....
Paragraph (b), designed to cover generally all sorts of extreme recklessness of life, includes also the case often referred to as “transferred intent”; ie., where defendant intends to kill A but causes the death of B. Proof of intent to kill is sufficient manifestation of “extreme indifference to the value of human life”.
Final Report of the National Commission on Reform of Federal Criminal Laws § 1601 cmt. at 173-74 (1971) (emphasis added). Indeed, the statutory language recommended in the commission’s Final Report is substantially the same as our current murder statute:
A person is guilty of murder, a Class A felony, if he causes the death of another human being under circumstances manifesting extreme indifference to the value of human life.
Id. at § 1601(b).
[¶ 52] In the Borner and Whitman trials, the court gave the jury an instruction, among others, titled “CONSPIRACY TO COMMIT MURDER.”
A person is guilty of conspiracy to commit murder if the person agreed with another to knowingly engage in or cause conduct which, in fact, constitutes the offense of murder of another under circumstances manifesting extreme indifference to the value of human life, and one party to that agreement did an overt act to effect an objective of the conspiracy.
[¶ 53] The history shows that the language of North Dakota’s murder statute has remained substantively unchanged since 1975 and reflects that the statutory offense of murder constitutes a single offense with different ways of committing it. There is certainly a crime of conspiracy to commit murder.
IV
[¶ 54] The linchpin of the majority’s analysis is that the drafters of the proposed Federal Criminal Code followed the Model Penal Code on conspiracy. See majority opinion at ¶ 11. The majority is incorrect for several reasons:
• The majority cites to text in the Working Papers that does not support the proposition for which it is stated.
• The text of the proposed Federal Criminal Code language on conspiracy does not follow the language of the Model Penal Code.
• The Final Report does not rely on the Model Penal Code, although it is one of the documents considered.
• Professor LaFave notes that the proposed Federal Criminal Code differs materially from the Model Penal Code.
A
[¶ 55] The majority says, at ¶ 11:
In turn, the proposed Federal Criminal Code Working Papers rely on the tentative drafts to the Model Penal Code for *398interpretation of the intent and culpability required to commit the crime of conspiracy. See I Working Papers of the Nat’l Comm’n on Reform of Federal Criminal Laws 387-91 (1970) [hereinafter “Working Papers ”].
But the Working Papers do not say that. (The Working Papers, Final Report, and legislative committee minutes are available at http://www.ndcourts.gov/Research/.) The cited reference shows that the Model Penal Code, the provisions of a number of state codes, and the criticism of existing federal conspiracy law were considered.
B
[¶ 56] The text of the proposed Federal Criminal Code language on conspiracy does not follow the language of the Model Penal Code. Model Penal Code Study Draft 10, considered by those working on the National Commission on Reform of Federal Criminal Laws, provided the following for Criminal Conspiracy:
Section 5.03. Criminal Conspiracy.
(1) Definition of conspiracy. A person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he:
(a) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or
(b) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.
(2) Scope of conspiratorial relationship. If a person guilty of conspiracy, as defined by Subsection (1) of this Section, knows that a person with whom he conspires to commit a crime has conspired with another person or persons to commit the same crime, he is guilty of conspiring with such other person or persons, whether or not he knows their identity, to commit such crime.
(3) Conspiracy with multiple criminal objectives. If a person conspires to commit a number of crimes, he is guilty of only one conspiracy so long as such multiple crimes are the object of the same agreement or continuous conspiratorial relationship.
(4) Joinder and venue in conspiracy prosecutions.
(a) Subject to the provisions of paragraph (b) of this Subsection, two or more persons charged with criminal conspiracy may be prosecuted jointly if:
(i) they are charged with conspiring with one another; or
(ii) the conspiracies alleged, whether they have the same or different parties, are so related that they constitute different aspects of a scheme of organized criminal conduct.
(b) In any joint prosecution under paragraph (a) of this Subsection:
(i) no defendant shall be charged with a conspiracy in any county [parish or district] other than one in which he entered into such conspiracy or in which an overt act pursuant to such conspiracy was done by him or by a person with whom he conspired; and
(ii) neither the liability of any defendant nor the admissibility against him of evidence of acts or declarations of another shall be enlarged by such joinder; and
(iii) the Court shall order a severance or take a special verdict as to any defendant who so requests, if it deems it necessary or appropriate to promote the fair determination of his guilt or innocence, and shall take any other proper measures to protect the fairness of the trial.
*399(5) Overt act. No person may be convicted of conspiracy to commit a crime, other than a felony of the first or second degree, unless an overt act in pursuance of such conspiracy is alleged and proved to have been done by him or by a person with whom he conspired.
(6) Renunciation of criminal purpose. It is an affirmative defense that the actor, after conspiring to commit a crime, thwarted the success of the conspiracy, under circumstances manifesting a renunciation of his criminal purpose.
(7) Duration of conspiracy. For purposes of Section 1.07(4) [time limitations]:
(a) conspiracy is a continuing course of conduct which terminates when the crime or crimes which are its object are committed or the agreement that they be committed is abandoned by the defendant and by those with whom he conspired; and
(b) such abandonment is presumed if neither the defendant nor anyone with whom he conspired does any overt act in pursuance of the conspiracy during the applicable period of limitation; and
(c) if an individual abandons the agreement, the conspiracy is terminated as to him only if and when he advises those with whom he conspired of his abandonment or he informs the law enforcement authorities of the existence of the conspiracy and of his participation therein.
Model Penal Code § 5.0B at 19-22 (Tentative Draft No. 10 1960).
[¶ 57] The Study Draft of a New Federal Criminal Code (1970) differed from the above language, and the Final Report language differed even further. The criminal conspiracy provisions of the Final Report provided:
§ 1004. Criminal Conspiracy.
(1) Offense. A person is guilty of conspiracy if he agrees with one or more persons to engage in or cause the performance of conduct which, in fact, constitutes a crime or crimes, and any one or more of such persons does an act to effect an objective of the conspiracy. The agreement need not be explicit but may be implicit in the fact of collaboration or existence of other circumstances.
(2) Parties to Conspiracy. If a person knows or could expect that one with whom he agrees has agreed or will agree with another to effect the same objective, he shall be deemed to have agreed with the other, whether or not he knows the other’s identity.
(3) Duration of Conspiracy. A conspiracy shall be deemed to continue until its objectives are accomplished, frustrated or abandoned. “Objectives” includes escape from the scene of the crime, distribution of booty, and measures, other than silence, for concealing the crime or obstructing justice in relation to it. A conspiracy shall be deemed to have been abandoned if no overt act to effect its objectives has been committed by any conspirator during the applicable period of limitations.
(4) Defense Precluded. It is no defense to a prosecution under this section that the person with whom such person is alleged to have conspired has been acquitted, has not been prosecuted or convicted, has been convicted of a different offense, is immune from prosecution, or is otherwise not subject to justice.
(5) Liability as Accomplice. Accomplice liability for offenses committed in furtherance of the conspiracy is to be determined as provided in section 401.
(6) Grading. Conspiracy shall be subject to the penalties provided for attempt in section 1001(3).
*400(7) Jurisdiction. There is federal jurisdiction over an offense defined in this section as prescribed in section 203.
Final Report § 1004 at 70-71.
[¶ 58] A comparison of the language establishes that the proposed Federal Criminal Code did not follow the Model Penal Code on conspiracy. Further, the language appears to follow the case law discussed in part I, supra. The proposed Federal Criminal Code focuses on an agreement to engage in conduct, while the Model Penal Code appears to focus on the agreement to commit a crime.
C
[¶ 59] The Study Draft and the Final Report reflect that the commission considered the Model Penal Code and many other sources:
The drafting process was as follows: The Commission’s staff and consultants, working with law enforcement agencies, prepared preliminary drafts and supporting memoranda. These drew upon the reports of other bodies, such as the President’s Commission on Law Enforcement and Administration of Justice, the National Commission on Causes and Prevention of Violence, the National Advisory Commission on Civil Disorders, the American Bar Association Project on Standards for Criminal Justice, the American Law Institute, the National Council on Crime and Delinquency and numerous state penal law revision commissions. Preliminary drafts were reviewed by the Advisory Committee and the Commission in periodic discussion meetings.
Final Report at xi-xii.
D
[¶ 60] Professor LaFave in his treatise, Substantive Criminal Law, both the first and second editions, notes that the proposed Federal Criminal Code differs from the Model Penal Code:
Some attention is also given to the proposed new federal criminal code of 1971, as drafted by the National Commission on Reform of the Federal Criminal Laws. Although Congress failed to adopt that proposal or any other major revision of federal substantive criminal law, the Commission’s work is worth noting, especially as to certain innovative proposals and also certain divergences from the Model Penal Code that have occasionally been adopted in state law reform.
1 Wayne R. LaFave, Substantive Criminal Law, at x n. 4 (2nd ed.2003).
V
[¶ 61] The majority analysis reflects, I believe, several additional mistakes that merit consideration.
A
[¶ 62] The majority writes throughout its opinion about “conspiracy to commit extreme indifference murder.” But as outlined in part III, supra, there is only a single offense of murder in North Dakota and thus only a single crime of conspiracy to commit murder.
B
[¶ 63] The majority, at ¶ 12, incorrectly labels the Working Papers as the official commentary to the proposed Federal Criminal Code:
In considering the intent underlying conspiracy, the official commentary to the proposed Federal Criminal Code states it is necessary to have an “intent *401that conduct constituting a crime be performed.” See I Working Papers, at 389.
The Working Papers are not the official commentary. Comments are found in the Final Report. The Working Papers can provide additional explanations, see Final Report at xi, but it is also important to see, for example, whether a consultant’s report was followed. As it happens, the language above from the Working Papers supports the concept that it is the conduct — not the crime — that must be intended. And it is consistent with the State’s position.
C
[¶ 64] The majority, at ¶ 19, claims “a majority of jurisdictions have held that conspiracy to commit an unintentional murder, analogous to the alleged crime in this case, is not a cognizable offense.” In supporting this claim, the majority cites several cases, but certainly not a majority of jurisdictions. Many of the majority’s cases, I believe, are incorrectly analyzed, as discussed below. The majority fails to consider a larger number of cases with holdings contrary to its claim. See People v. Owens, 131 Mich.App. 76, 84, 345 N.W.2d 904 (1983) (“Thus, the trial court erred in failing to instruct the jury on conspiracy to commit second-degree murder.”); State v. Kaakimaka, 84 Hawai'i 280, 295, 933 P.2d 617, 632 (1997) (“[W]e hold that: (1) the statutory scheme governing the offense of conspiracy to commit second degree murder is not unconstitutionally vague.... ”); State v. Phillips, 489 N.W.2d 613, 616 (S.D.1992) (indicating conspiracy to commit second degree murder is a cognizable crime); State v. Leger, 2004-1467, p. 23 (La.App. 3 Cir. 6/1/05); 907 So.2d 739, 756 (sufficient evidence was presented to prove conspiracy to commit second degree murder); Leach v. Barbee, No. W2012-00652-CCA-R3HC, 2012 WL 3966711 at *3 (Tenn.Crim.App. Sept. 11, 2012) (“Tennessee jurisprudence is replete with references to cases in which our courts have affirmed judgments of conspiracy to commit second degree murder. Thus, petitioner’s argument that conspiracy to commit second degree murder is not a cognizable offense under the Tennessee Code is meritless.”) (citations omitted); Rude v. State, 851 P.2d 20, 26 (Wyo.1993) (upheld the district court’s refusal to allow defendant to withdraw guilty plea to conspiracy to commit second degree murder); Joseph v. Phillips, No. 03-CV-1612 (FB), 2003 WL 22768237, at *2 (E.D.N.Y. Nov. 24, 2003) (defendant’s intent to engage in conspiracy to commit second degree murder was supported by the evidence); State v. Beaver, 148 Wash.2d 338, 340, 60 P.3d 586, 587 (2002) (defendant pleaded guilty to conspiracy to commit second degree murder); State v. Tollardo, 2012-NMSC-008, ¶10, — N.M. -, 275 P.3d 110 (appellants pled guilty to conspiracy to commit second degree murder); Santiago v. State, No. A06-236, 2006 WL 3071390, at *3 (Minn.Ct.App. Oct. 31, 2006) (sentence for conspiracy to commit intentional second degree murder upheld); People v. La Plant, 670 P.2d 802, 803 (Colo.Ct.App. 1983) (conviction for conspiracy to commit second degree murder affirmed); State v. Barrett, 132 Ariz. 106, 106, 644 P.2d 260, 260 (Ct.App.1981) (defendant appeals his sentencing after being convicted of conspiracy to commit second degree murder); Carver v. State, No. CACR07-292, 2008 WL 442588, at *3 (Ark.Ct.App. Feb. 20, 2008) (“Such facts were sufficient to support his conviction for conspiracy to commit second-degree murder.”).
[¶ 65] In its analysis of the claimed “intent to kill” requirement, the majority overlooks cases from states such as Pennsylvania, which has upheld conspiracy to commit second degree murder convictions when felony murder is included under the second degree murder law. Because felo*402ny murder does not require an intent to kill, the case supports the argument that intent to kill is not required for conspiracy to commit murder statutes. Com. v. Fortune, 305 Pa.Super. 441, 446, 451 A.2d 729, 731 (1982).
D
[¶ 66] The majority, at ¶ 12, cites State v. Greene, 874 A.2d 750, 770 (Conn.2005), as “holding conspiracy is a specific intent crime requiring an intent to agree and an %ten[t] to commit the elements of the offense.’ ” While this may be the correct law in Connecticut, it is specifically contrary to the federal conspiracy law from which North Dakota’s current conspiracy law has evolved. The federal cases discussed above specifically reflect that conspiracy does not require intent to commit every element of the offense. See, e.g., Feola, 420 U.S. at 686-87, 95 S.Ct. 1255, discussed at ¶ 37 above.
E
[¶ 67] The majority, at ¶ 12, cites People v. Gilbert, 183 Mich.App. 741, 455 N.W.2d 731, 735 (1990), as “holding conspiracy is a specific intent crime requiring an agreement between two or more persons to perform the crime in question.” The majority does not note that a different panel of the Michigan Court of Appeals has come to a different conclusion and that the Michigan Supreme Court has declined to resolve the conflict. Gilbert itself notes:
However, another panel of this Court, in People v. Owens, 131 Mich.App. 76, 84, 345 N.W.2d 904 (1983), vacated [on other grounds] 430 Mich. 876, 423 N.W.2d 39 (1988), held that conspiracy to commit second-degree murder was a necessarily included lesser offense of conspiracy to commit first-degree murder and therefore a trial judge is required to give an instruction regarding this lesser included offense when a defendant is charged with conspiracy to commit first-degree murder. Our Supreme Court expressly declined to resolve the issue whether the offense exists as a lesser included offense of conspiracy to commit first-degree murder. People v. Fernandez, 427 Mich. 321, 342, 398 N.W.2d 311 (1986).
People v. Gilbert, 183 Mich.App. 741, 455 N.W.2d 731, 735 (1990).
F
[¶ 68] The majority, at ¶ 19, cites United States v. Croft, 124 F.3d 1109, 1121-22 (9th Cir.1997), as “noting an ‘intent to kill’ is an essential element of conspiracy to commit second-degree murder.” I do not see where it says this. The case was not a second degree murder case. “Sally-Anne Croft and Susan Hagan were convicted by a jury of conspiring to murder the United States Attorney for the District of Oregon, a violation of 18 U.S.C. §§ 1111, 1114, and 1117.” 124 F.3d at 1113.
[¶ 69] Most of the cases cited by the majority are not inconsistent with the federal formulation that it is the intent required for the substantive offense that must be proven in a conspiracy charge. For murder in North Dakota under circumstances manifesting extreme indifference to the value of human life, it is the conduct that must be intended, not the result. In North Dakota, convictions of murder under those circumstances do not require an intent to kill. In most of the cases cited by the majority, conviction of the underlying offense required an intent to kill. Or the states follow the Model Penal Code formulation not followed in the proposed Federal Criminal Code that is followed in North Dakota. See People v. Swain, 12 Cal.4th 593, 49 Cal.Rptr.2d 390, 909 P.2d 994, 997 (1996) (California adopted the Model Penal Code formulation, and the underlying substantive of*403fense required “intention unlawfully to take away the life of a fellow creature”).
[¶ 70] Because of their failure to object in the trial court, the defendants would need to establish clear, obvious error. They cannot do so.
VI
[¶ 71] “An error is not obvious unless there is a ‘clear deviation from an applicable legal rule under current law.’ ” State v. Bertram, 2006 ND 10, ¶17, 708 N.W.2d 918 (quoting State v. Olander, 1998 ND 50, ¶ 14, 575 N.W.2d 658). Bertram has stated our general approach for finding obvious error, and one of the prerequisites for obvious error is not present here.
[¶72] Citing Olander, 1998 ND 50, ¶ 14, 575 N.W.2d 658, the majority declares, “An obvious error is a deviation from an applicable legal rule.” The majority, however, fails to cite or discuss the requirement for a “clear deviation from an applicable legal rule under current law.” Bertram, 2006 ND 10, ¶17, 708 N.W.2d 913 (quoting Olander, at ¶ 14 (“[A]n appellate court should not correct an error unless there is a clear deviation from an applicable legal rule under current law.”)). Review for obvious error is significantly different under the requirement for a clear deviation from an applicable legal rule under current law. Were the majority to include the exact standard from Bertram and Olander, its decision would not be persuasive.
[¶ 73] If we use the language describing the correct standard, our holding must change. There is no clear deviation from an applicable legal rule under current law here, because the law of conspiracy is not clearly established. Obvious error is a difficult standard to overcome, and this Court usually fails to find a clear deviation from an applicable legal rule under current law.
As we have previously noted, N.D.R.Crim.P. 52(b) provides a narrow exception to the rule that issues may not be raised for the first time on appeal, and we exercise the power to notice obvious error cautiously and only when the defendant has suffered serious injustice. ... There is no obvious error when an applicable rule of law is not clearly established.
State v. Tresenriter, 2012 ND 240, ¶ 16, 823 N.W.2d 774 (failing to find obvious error when no North Dakota statute or case law was cited that clearly required consolidation of offenses under these circumstances) (citations omitted).
[¶ 74] In State v. Lee, this Court also failed to find obvious error, holding that “the error, if it was error, alleged by Lee was not an obvious error under N.D.R.Crim.P. 52(b), because it was not in conflict with applicable legal rule under current law.” State v. Lee, 2004 ND 176, ¶ 17, 687 N.W.2d 237 (finding no obvious error in admitting a 911 tape when the North Dakota Rules of Evidence do not require a witness to be unavailable). This Court also did not find obvious error in State v. Miller, holding,
Miller has failed to cite a single case holding that a reconfiguration of the courtroom which does not physically obstruct the defendant and witness’s view of each other violates the Confrontation Clause, requires a Craig hearing, or requires a cautionary instruction. Under these circumstances, Miller has failed to demonstrate that the procedure employed in this case constituted a clear deviation from an applicable legal rule under current law.
State v. Miller, 2001 ND 132, ¶28, 631 N.W.2d 587.
[¶ 75] Likewise, the majority has failed to cite a single North Dakota case holding *404that conspiracy to commit extreme indifference murder is not a cognizable offense. It would be difficult to conclude the law on this matter is clear when the majority interprets North Dakota conspiracy law in a way we have never interpreted it before.
[¶ 76] The United States Supreme Court has similarly articulated the burden for plain error or obvious error. In United States v. Olano, it said:
The second limitation on appellate authority under Rule 52(b) is that the error be “plain.” “Plain” is synonymous with “clear” or, equivalently, “obvious.” See [United States v.] Young, supra, [470 U.S. 1,] 17, n. 14 [105 S.Ct. 1038, 84 L.Ed.2d 1 (1985) ]; United States v. Frady, 456 U.S. 152, 163 [102 S.Ct. 1584, 71 L.Ed.2d 816] (1982). We need not consider the special case where the error was unclear at the time of trial but becomes clear on appeal because the applicable law has been clarified. At a minimum, a court of appeals cannot correct an error pursuant to Rule 52(b) unless the error is clear under current law.
United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (emphasis added). In United States v. Frady, the United States Supreme Court explained:
Rule 52(b) was intended to afford a means for the prompt redress of miscarriages of justice. By its terms, recourse may be had to the Rule only on appeal from a trial infected with error so “plain” the trial judge and prosecutor were derelict in countenancing it, even absent the defendant’s timely assistance in detecting it. The Rule thus reflects a careful balancing of our need to encourage all trial participants to seek a fair and accurate trial the first time around against our insistence that obvious injustice be promptly redressed.
United States v. Frady, 456 U.S. 152, 163, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982) (emphasis added) (footnotes omitted).
[¶ 77] We have repeatedly refused to find obvious error when the law is unclear on a particular matter. Our decisions create an extremely high burden for reversal. As such, reversal is unwarranted in this case, because North Dakota’s conspiracy law is in no way clearly established. I would hold the district court committed no obvious error.
VII
[¶ 78] There is no obvious injustice. The majority says there is no greater injustice than convicting someone of conduct that is not an offense. Conspiracy to commit murder is certainly a crime in North Dakota. The conduct established — indeed the conduct admitted by the defendants— is an offense, a very serious offense. The conduct admitted by the defendants meets the definition of murder because death occurred while the defendants were committing armed robbery. By their own testimony, they either explicitly or implicitly conspired to commit the felony robbery that resulted in death. There is no previously established, clear North Dakota law that conspiracy to commit murder under these circumstances is not an offense. The district court committed no obvious error.
VIII
[¶ 79] I would affirm the judgment in this case as well as in the case of Borner’s co-defendant Whitman.
[¶ 80] DALE V. SANDSTROM.