Matter of D.A., 2012 ND 132

May 29, 2011, altercation with Fargo police leads to charges of menacing under NDCC §12.1-17-05
Bruce waived jury trial; bench trial held before Judge McCullough
Three officers testified Bruce threatened to injure them, pounded chest, and moved toward them; no weapons seen
Officers believed Bruce intoxicated; he had a reputation for violence toward police
District court found Bruce guilty based on officers’ fear of imminent serious bodily injury
Bruce appeals contending the court misapplied the statute and standard of review

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the evidence proves menacing beyond a reasonable doubt	State argues evidence shows fear of imminent injury	Bruce contends evidence insufficient to show imminent fear	Yes; sufficient evidence supported guilt under the statute
Whether the district court properly considered the officers’ subjective fear	State says fear element satisfied by officers’ testimony	Bruce says fear was not properly analyzed under law	Court affirmed; subjective fear properly considered under the statute
What standard governs review of sufficiency of the evidence	State urges sufficiency standard, not de novo	Bruce argues for de novo review	Sufficiency-of-the-evidence standard applies

State v. Kurle, 390 N.W.2d 48 (N.D. 1986) (defines imminence and fear in context of mens rea)
State v. Touche, 549 N.W.2d 193 (N.D. 1996) (discusses fear element in menacing/terrorizing context)
State v. Hass, 268 N.W.2d 456 (N.D. 1978) (menacing is a lesser-included offense of terrorizing; fear element related)
Biddle v. Dist. Court, 516 P.2d 645 (Colo. 1973) (supports consideration of victim’s subjective fear under menacing statute)
State v. Nakvinda, 2011 ND 217, 807 N.W.2d 204 (N.D. 2011) (sufficiency review standard; review favors verdict if reasonable inference supports guilt)
State v. Kinsella, 2011 ND 88, 796 N.W.2d 678 (N.D. 2011) (clarifies sufficiency standard for criminal convictions)