State v. Vetter

826 N.W.2d 334

2013 ND 4

STATE of North Dakota, Plaintiff and Appellee

v.Alois VETTER, Defendant and Appellant.

No. 20120015.

Supreme Court of North Dakota.

Jan. 23, 2013.

Cherie LaVonne Clark (argued) and Reid Alan Brady (on brief), Assistant State's Attorneys, Fargo, ND, for plaintiff and appellee.

Daniel Eric Gast, Fargo, ND, for defendant and appellant.

CROTHERS, Justice.

[¶ 1] Alois Vetter appeals the district court's judgment entered after a jury convicted him of aggravated assault with a dangerous weapon. Vetter argues a vehicle is not a dangerous weapon under the plain language of N.D.C.C. § 12.1–01–04(6). We affirm, concluding a vehicle may be considered a dangerous weapon under N.D.C.C. § 12.1–01–04(6) and sufficient evidence supports Vetter's conviction.

I

[¶ 2] Vetter owns rental property in West Fargo, North Dakota. Brian Hemphill, the victim, was a prior tenant. Vetter and Hemphill developed a confrontational relationship. On February 18, 2011, Vetter drove his 2005 Hummer past one of his properties to see if a tenant had moved out. Vetter drove past the property at least two more times. Hemphill was present at the property and learned Vetter had repeatedly driven past. Hemphill decided to confront Vetter.

[¶ 3] Hemphill walked into the street in front of Vetter's vehicle. Hemphill testified that Vetter yelled at Hemphill to get out of the way, but that he did not move because he “didn't want to be bullied by [Vetter] anymore.” Vetter drove forward while Hemphill backpedaled. Vetter testified the road was too narrow to turn to get around Hemphill. Initially, Hemphill could have moved away but did not. At some point, Hemphill could not get out of the path of the vehicle and could not keep up. Hemphill fell beneath the vehicle. Eyewitnesses testified that both the front tire and rear tire of Vetter's vehicle rolled over Hemphill. Hemphill suffered multiple injuries, including broken ribs, a broken facial bone, a lacerated ear and abrasions. According to West Fargo Police Officer Trent Stanton, Hemphill was pushed back approximately eighty-six feet.

[¶ 4] Vetter was convicted of aggravated assault under N.D.C.C. § 12.1–17–02(1). The jury specially found Vetter “inflicted bodily injury upon another with a dangerous weapon” in the course of committing the crime. Vetter filed a motion for a new trial and acquittal, arguing a motor vehicle cannot be considered a dangerous weapon. The district court denied the motion and sentenced Vetter to three years imprisonment with one year suspended. The two-year sentence was the mandatory minimum due to the special finding Vetter used a dangerous weapon under N.D.C.C. § 12.1–32–02.1.

II

[¶ 5] Vetter argues a vehicle is not a dangerous weapon under N.D.C.C. § 12.1–01–04(6) as a matter of law. He frames this appeal as a matter of statutory construction, which is fully reviewable by this Court. State v. Trevino, 2011 ND 232, ¶ 21, 807 N.W.2d 211. The State argues Vetter's argument is simply a challenge to the jury's finding Vetter used a dangerous weapon while committing an aggravated assault. As such, the State frames this appeal as a challenge to the sufficiency of the evidence, under which this Court “merely reviews the record to determine if there is competent evidence allowing the jury to draw an inference reasonably tending to prove guilt and fairly warranting a conviction.” State v. Bauer, 2010 ND 109, ¶ 7, 783 N.W.2d 21 (quotation omitted).

[¶ 6] Prior appeals challenging a jury finding the defendant used a dangerous weapon while committing aggravated assault have been construed as issues of fact and reviewed under the sufficiency of the evidence standard. “Whether the defendant was in possession of a dangerous weapon while committing the offense charged is a question for the trier of fact.” Bauer, 2010 ND 109, ¶ 7, 783 N.W.2d 21(quoting State v. Schweitzer, 510 N.W.2d 612, 614 (N.D.1994)); see also State v. Clinkscales, 536 N.W.2d 661, 664–65 (N.D.1995) (holding evidence did not create a reasonable doubt about whether the defendant possessed a dangerous weapon). However, none of the defendants in Bauer,Schweitzer or Clinkscales presented challenges identical to Vetter's.

[¶ 7] In Schweitzer, the defendant pled guilty to robbery and the trial court found the tear gas gun used in the robbery was a “dangerous weapon” triggering the mandatory minimum sentence. 510 N.W.2d at 613. Schweitzer argued the trial court erred by finding the tear gas gun was a dangerous weapon “without the aid of any ‘qualified testimony’ as to its dangerousness which [Schweitzer] contends is required by § 29–26–18, N.D.C.C.” Schweitzer, at 614. Schweitzer was disputing an issue of fact: the judge could not find a tear gas gun dangerous without qualified testimony supporting the finding.

[¶ 8] In Clinkscales, the defendant was convicted of felony robbery. 536 N.W.2d at 662. The elements of that offense were that the defendant: (1) while committing a theft, (2) willfully possessed a firearm or other dangerous weapon and (3) willfully threatened or menaced another with serious bodily harm. Id. at 664. Clinkscales conceded he possessed a BB gun resembling a 9mm pistol, but argued the State did not prove the BB gun was “readily capable of expelling a projectile.” Id. He argued the officers who testified at trial did not test the BB gun to determine if it was capable of firing. Id. Like Schweitzer, Clinkscales was challenging an issue of fact: whether the BB gun was capable of firing a projectile.

[¶ 9] In Bauer, the defendant was convicted of aggravated assault. 2010 ND 109, ¶ 5, 783 N.W.2d 21. The defendant argued that “there was insufficient evidence to show that the knife met the definition of a weapon sufficient to constitute aggravated assault.” Id. at ¶ 6. Vetter's argument is different than Bauer's. Bauer expressly challenged the sufficiency of the evidence, where Vetter characterizes his challenge as a matter of statutory construction. Bauer was convicted of aggravated assault under N.D.C.C. § 12.1–17–02(2), which defines aggravated assault as “[k]nowingly caus[ing] bodily injury or substantial bodily injury to another human being with a dangerous weapon or other weapon, the possession of which under the circumstances indicates an intent or readiness to inflict serious bodily injury.” Vetter was convicted under N.D.C.C. § 12.1–17–02(1). The jury in Bauer did not make a separate finding that a dangerous weapon was used in the crime. We held, “[T]he jury could have reasonably inferred that Bauer possessed the knife under circumstances that indicated a readiness to inflict serious bodily injury.” Bauer, at ¶ 9. Thus, the issue in Bauer was not whether as a matter of law a knife was a dangerous weapon, but whether Bauer's possession of the knife indicated a readiness to inflict serious bodily injury as required by N.D.C.C. § 12.1–17–02(2).

[¶ 10] Vetter's argument hinges on whether a vehicle is a dangerous weapon as a matter of law, not whether Vetter's use of the vehicle indicated a readiness to inflict serious bodily injury. Though the sufficiency of the evidence standard ultimately must be employed, we first must address the meaning of N.D.C.C. § 12.1–01–04(6) to determine “if there is competent evidence allowing the jury to draw an inference reasonably tending to prove guilt and fairly warranting a conviction.” Bauer, 2010 ND 109, ¶ 7, 783 N.W.2d 21 (quotation omitted); see also State v. O'Toole, 2009 ND 174, ¶¶ 11–14, 773 N.W.2d 201 (interpreting statute as questionof law prior to applying the sufficiency of the evidence standard).

A

[¶ 11] The standard of review for interpreting a criminal statute is well established:

“Construction of a criminal statute is a question of law, fully reviewable by this Court. Our primary goal in interpreting statutes is to ascertain the Legislature's intentions. In ascertaining legislative intent, we first look to the statutory language and give the language its plain, ordinary and commonly understood meaning. We interpret statutes to give meaning and effect to every word, phrase, and sentence, and do not adopt a construction which would render part of the statute mere surplusage. When a statute's language is ambiguous because it is susceptible to differing but rational meanings, we may consider extrinsic aids, including legislative history, along with the language of the statute, to ascertain the Legislature's intent. We construe ambiguous criminal statutes against the government and in favor of the defendant.”

State v. Buchholz, 2005 ND 30, ¶ 6, 692 N.W.2d 105 (quotation omitted). We first examine the plain language of the statute. Id.Section 12.1–01–04(6), N.D.C.C., states:

“ ‘Dangerous weapon’ means, but is not limited to, any switchblade or gravity knife, machete, scimitar, stiletto, sword, or dagger; any billy, blackjack, sap, bludgeon, cudgel, metal knuckles, or sand club; any slungshot; any bow and arrow, crossbow, or spear; any weapon which will expel, or is readily capable of expelling, a projectile by the action of a spring, compressed air, or compressed gas including any such weapon, loaded or unloaded, commonly referred to as a BB gun, air rifle, or CO2 gun; and any projector of a bomb or any object containing or capable of producing and emitting any noxious liquid, gas, or substance.”

A vehicle is not enumerated in the statute, but the statute includes the catch-all phrase “but is not limited to.” Vetter argues the primary purpose of each enumerated item is use as a weapon. Vetter argues that instead of using broad categories, the legislature identified particular classes of knives, e.g. switchblade, gravity knife, machete and sword. He claims the legislature defined dangerous weapons by the item's essential characteristics as opposed to the purpose for which the item is used in a particular instance. The State argues the statutory list is not exhaustive and the jury must employ common knowledge and experience in...