Filed 1/23/13 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
State of North Dakota, Plaintiff and Appellee
v.
Alois Vetter, Defendant and Appellant
No. 20120015
Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Steven E. McCullough, Judge.
AFFIRMED.
Opinion of the Court by Crothers, Justice.
Cherie LaVonne Clark (argued) and Reid Alan Brady (on brief), Assistant State’s Attorneys, Cass County Courthouse, P.O. Box 2806, Fargo, ND 58108-2806, for plaintiff and appellee.
Daniel Eric Gast, 35 4th Street North, Suite 201, Fargo, ND 58102, for defendant and appellant.
State v. Vetter
No. 20120015
Crothers, Justice.
[¶1] Alois Vetter aрpeals 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 evidenсe 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 hе 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 рushed 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 cоnsidered 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
,
[¶6] Prior appeals challenging a jury finding the defendant used a dangerous weaрon 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
,
[¶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.
[¶8] In
Clinkscales
, the defendant was convicted of felony robbery.
[¶9] In
Bauer
, the defendant was convicted of aggravated assault.
[¶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
,
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, phrаse, 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 Legislaturе’s intent. We construe ambiguous criminal statutes against the government and in favor of the defendant.”
State v. Buchholz
,
“‘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, metаl 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 purpоse 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 determining if an item is a dangerous weapon. “We have long recognized not only the permissibility, but the desirability of the jury’s employment of common knowledge and reаson in reaching a verdict.”
O’Toole
,
[¶12] We give meaning and effect to each word of the statute. Vetter argues the enumerated list becomes surplusage if the statute is construed to permit any other item to be considered a dangerous weapon without limitation. To harmonize the enumerated list with the catch-all phrase, Vеtter argues the enumerated items have a primary purpose of inflicting damage in some way and the “but not limited to” language expands the class to include any similar items with distinct names sharing the essential characteristic of being a weapon. Vetter relies on the doctrine of
ejusdem
generis
. “Under the rule of
ejusdem
generis
, when general words follow specifiс words in a statutory or contractual enumeration, the general words are construed to embrace only objects similar in nature to those objects specifically enumerated.”
State, ex rel. Stenehjem v. Philip Morris, Inc.
,
[¶13] Other courts confronting this issue have concluded that while a vehicle is not a dangerous weapon per se, it may be so used to constitute a dangerous weapon within the meaning of an assault statute.
See
People v. Goolsby
,
[¶14] Whether a vehicle is a dangerous weapon is dependent upon the guiding statute. Michigan provides an analogous example, and its statute prоvides, “[A] person who assaults another person with a gun, revolver, pistol, knife, iron bar, club, brass knuckles, or other dangerous weapon without intending to commit murder or to inflict great bodily harm less than murder is guilty of a felony . . . .” Mich. Comp. Laws. Ann. § 750.82(1) (West 2012) (emphasis added). Like N.D.C.C. § 12.1-01-
04(6), the Michigan statute provides a per se list and includes the catch-all “or other dangerous weapon.” In
Goolsby
, the Supreme Court of Michigan held a vehicle could be considered a dangerous weapon under the statute.
“Some weapons carry their dangerous character because so designed and are, when employed, per se, deadly, while other instrumentalities are not dangerous weapons unless turned to such purpose. The test as to the latter is whether the instrumentality was used аs a weapon and, when so employed in an assault, dangerous.”
Id. at 868. Goolsby argued that the statute restricted dangerous weapons to the same type and kind as enumerated in the statute and that a vehicle did not fall within that scope. Id. at 869. Like Vetter, Goolsby argued the doctrine of ejusdem generis precluded a vehicle from being a dangerous weapon as a matter of law. Id. The court held the doctrine did not apply, stating, “The evil, under legislative consideration, was that of assaults, aggravated by use of dangerous weapons and, expressive of such purpose, certain instrumentalities were mentioned, not to the exclusion of other potentially dangerous weapons , but inclusion thereof by the omnibus term ‘or other weapon.’” Id. (emphasis added).
[¶15] Vetter’s characterizаtion of N.D.C.C. § 12.1-01-04(6) is too narrow. Adopting Vetter’s argument requires this Court to conclude as a matter of law a vehicle may
never
be used as a dangerous weapon.
See
People v. Buford
,
[¶16] The State’s characterization of N.D.C.C. § 12.1-01-04(6) comports closer to the plain language of the statute as well as our precedent emphasizing the factually grounded analysis of whether an item is a dangerous weapon. The State’s charactеrization permits the fact finder to determine whether an object is a dangerous weapon based on how the object is used. We cannot say a vehicle may never be considered a dangerous weapon under N.D.C.C. § 12.1-01-04(6). Thus, this case returns to the sufficiency of the evidence standard to determine whether the jury had sufficient evidence to find Vetter used a dangerous weapon.
B
[¶17] Our review of the sufficiency of the evidence for a jury verdict is limited.
Bauer
,
“We look only to the evidence and reasonable inferences most favorable to the verdict to ascertain if there is substantial evidence to warrant the conviction. A convictiоn rests upon insufficient evidence only when, after reviewing the evidence in the light most favorable to the prosecution and giving the prosecution the benefit of all inferences reasonably to be drawn in its favor, no rational fact finder could find the defendant guilty beyond a reasonable doubt. In considering a sufficiency оf the evidence claim, we do not weigh conflicting evidence, or judge the credibility of witnesses.”
O’Toole
,
III
[¶18] A vehicle may be considered a dangerous weapon under N.D.C.C. § 12.1-01-
04(6), and sufficient еvidence exists to support Vetter’s conviction. We affirm the district court’s judgment.
[¶19] Daniel J. Crothers
Mary Muehlen Maring
Carol Ronning Kapsner
I concur in the result.
Dale V. Sandstrom
VandeWalle, Chief Justice, concurring in the result.
[¶20] I believe it is overly simplistic to conclude that it is always a question of fact whether or not an object used in committing an aggravated assault is a dangerous weapon. Nevertheless, I concur in the result reached by the majority opinion. The cases cited by the majority for the most part involve objects such as guns and knives which are known to be dangerous when used improperly. Automobiles, too, are known to be dangerous when used improperly. I leave for another case the question of whether, under our statutes, an object not known to have dangerous properties becomes a dangerous weapon when used in an assault.
[¶21] Gerald W. VandeWalle, C.J.