North Dakota Law

Updates from the University of North Dakota School of Law.

Men accused of killing teen in Fargo robbery face rare felony murder charge – Professor Steven Morrison is quoted

The charge filed against Fabian Scott and Marcus McCuin has been used by North Dakota prosecutors four other times in the last 20 years. What does it mean for the case?

FARGO — When prosecutors accused Fabian Edwin Scott and Marcus Pierre McCuin of planning a robbery that led to a 16-year-old’s death in Fargo, the attorneys used a charge so rare that the number of times it has been pursued in other cases over the last two decades can be counted on one hand.

Only four other people in North Dakota have been charged with murder in course of, in furtherance of or in flight from certain crimes, otherwise known as felony murder.

The law allows prosecutors to pursue a murder charge against a person who participates in a specific crime, including robbery, that leads to the death of another.

In other words, if a person is killed during a robbery, those who helped could be charged with murder even if they didn’t participate in the killing.

The law has been on North Dakota’s books since 1973, yet it has rarely been used, at least in recent history. The situations in which the charge can be pursued don’t often arise in North Dakota, said Burleigh County State’s Attorney Julie Lawyer, who prosecuted a similar case this year.

“We don’t see stuff like this,” she said. “We don’t see robberies, because they are very specific crimes that you have to be doing when someone dies that you can be able to charge this type of murder, and we just don’t really see that type of violence here.”

The charge is one of the most complex and difficult areas of criminal law, University of North Dakota law professor Steven Morrison said. Typically, prosecutors try to connect the act of a crime to the intention, he said. A person may not intend to kill someone while committing robbery, Morrison said.

“Felony murder operates to connect the otherwise unconnected,” he said.

Still, it is not so complex that jurors can’t grasp it, Morrison said. Felony murder is based on normative judgments on who should be liable for a death, he said

“Once you get all the elements, it’s not that hard,” he said.


There are different versions of felony murder charges across the country, but the basics are similar, Morrison said. If a person kills someone while committing a felony, they can be charged with murder, he said.

The charge has been criticized across the U.S. by some as “excessively punitive,” Morrison said.

States typically put limits on what crimes apply, he said. For example, in North Dakota those crimes are limited to treason, burglary, kidnapping, felonious restraint, arson, gross sexual imposition, a felony offense against a child, escape and robbery.

This year, Minnesota lawmakers narrowed the scope of the state’s felony murder charge, legally called aiding and abetting, after a task force raised concerns that the charge wasn’t deterring crime. The task force also determined the charge was disproportionately applied to the Black population, and the “ adverse consequences” of the law outweighs benefits,” according to a 2022 report.

Fargo case

Prosecutors alleged 41-year-old McCuin, of Fargo, drove 19-year-old Scott and 16-year-old James Moore, both of West Fargo, to the Twin Parks apartments, 4430 9th Ave. S., in Fargo, where they met 31-year-old Marcus Brian Rexrode, of Fargo, shortly after 11 p.m. on May 22.

Court documents detailed accusations of Moore’s plan to rob Rexrode of marijuana while Scott served as a lookout.

Moore had a gun he stole from a car, court documents claimed. McCuin gave Scott a gun, a criminal complaint alleged.

During the deal to buy 5 ounces of marijuana for $900, Rexrode allegedly shot Moore before fleeing. Rexrode told police that Moore pointed a gun at him, and Scott began shooting before Rexrode fired back, according to court documents.

Moore died at the scene.

Scott claims he shot at Rexrode after hearing gunfire and watching Rexrode run, court documents said. He said he didn’t see Moore pull a gun out, court documents said.

Rexrode is facing a murder charge for allegedly killing Moore.

It’s not unheard of to prosecute someone for felony murder when the victim was a part of the initial crime, but it is unusual, Morrison said. North Dakota law allows prosecutors to pursue charges against fellow robbers if one of them dies, Morrison said.

Cass County Assistant State’s Attorney Ryan Younggren, who is prosecuting Rexrode, McCuin and Scott, declined to comment on specifics of the case. He noted North Dakota law allows those other than the killer to be charged with murder, though they are presumed innocent until proven guilty, he added.

Potential defense

North Dakota law lays out several defenses McCuin and Scott could potentially use.

Defendants can argue they didn’t kill a person or “solicit, command, induce, procure, counsel, or aid the commission” of murder. The person also can say they were not armed with a weapon that “indicated a readiness to inflict serious bodily injury.”

Prosecutors also have to disprove the defendant reasonably believed no other person involved in the crime was armed and that “no other participant intended to engage in conduct likely to result in death or serious bodily injury.”

McCuin and Scott had hearings scheduled this week, but they were pushed back. There is a large amount of evidence to go through in the case, McCuin’s attorney, Leah Viste said, adding she hasn’t been able to review it all yet. She declined to comment on defense strategies.

“We maintain at this point that it was not his intent to be involved in any criminal robbery or otherwise in that particular instance,” Viste said.

A former prosecutor of 19 years, Viste never used North Dakota’s felony murder charge. She called it unique.

“Murder is a consequence, maybe an unintended consequence, of participating in one of the enumerated felonies in that statute,” she said.

She questioned how far the charge should extend when it comes to a person’s alleged participation in a crime that results in a death.

“That’s to be determined, I guess,” she said.

Scott’s attorney, Steve Mottinger, declined to comment on the case.

Other cases

All six felony murder charges pursued over the last 20 years in North Dakota were filed in the 2020s, according to data from the North Dakota Supreme Court. Two are similar to the case in Fargo.