State v. McCreary, 967 N.W.2d 447

On April 6, 2019, Michael McCreary, attending a hotel event in Williston, struck hotel security guard J.P. in the forehead with a long cylindrical object during an altercation.
J.P. described the object as similar to a Maglite; earlier photos showed McCreary carrying a large, dark flashlight about one foot long in a hip holster.
J.P. sustained a large swollen lump to his forehead; McCreary was charged with aggravated assault with a dangerous weapon under N.D.C.C. § 12.1-17-02(1)(b).
The jury convicted McCreary; the district court sentenced him to five years’ imprisonment with three years suspended and credit for time served.
On appeal McCreary argued (1) a flashlight is not a “dangerous weapon” under N.D.C.C. § 12.1-01-04(6) and (2) the evidence was insufficient to support an aggravated-assault conviction premised on a dangerous weapon.
The Supreme Court held that § 12.1-01-04(6) is not exhaustive, a flashlight can be a dangerous weapon depending on mode of use, and the evidence was sufficient to support the conviction.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a flashlight can be a "dangerous weapon" under N.D.C.C. § 12.1-01-04(6)	The statute is not exhaustive; non-enumerated objects may be weapons based on use	Flashlight is not enumerated and therefore not a dangerous weapon as a matter of law	Statute is non-exhaustive; whether an object is a dangerous weapon is a fact question dependent on mode of use; flashlight may qualify
Sufficiency of the evidence for aggravated assault with a dangerous weapon	J.P.’s testimony and photos show McCreary wielded a large flashlight and struck J.P. with a powerful overhand blow causing injury	Evidence insufficient because a flashlight cannot be a dangerous weapon	Viewing evidence in prosecution’s favor, a rational jury could find beyond a reasonable doubt the flashlight was used as a dangerous weapon; conviction affirmed
Charging/pleading argument that defendant wasn’t charged with the "other weapon" alternative	State charged under § 12.1-17-02(1)(b) (dangerous weapon or other weapon)	McCreary argued the Amended Information failed to allege the "other weapon" alternative	Argument without merit and moot; Amended Information charged the statute and jury was instructed on dangerous weapon only

State v. Buchholz, 692 N.W.2d 105 (N.D. 2005) (rules for statutory interpretation and construing criminal statutes in favor of defendant)
State v. Bauer, 783 N.W.2d 21 (N.D. 2010) (standard for sufficiency review and question-of-fact determinations)
State v. Vetter, 2013 ND 4 (N.D. 2013) (holding § 12.1-01-04(6) is not exhaustive and whether an object is a dangerous weapon depends on circumstances)
State v. Gray, 893 N.W.2d 484 (N.D. 2017) (describing standard of review for sufficiency of the evidence)
State v. Friesz, 898 N.W.2d 688 (N.D. 2017) (unchallenged jury instructions become law of the case)
State v. Yoney, 943 N.W.2d 791 (N.D. 2020) (appellate review assumes jury believed evidence supporting verdict)
People v. Ragland, 165 N.W.2d 639 (Mich. 1968) (jury may determine whether a flashlight is a dangerous weapon)