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State v. Bauer

June 10, 2010

STATE OF NORTH DAKOTA, PLAINTIFF AND APPELLEE
v.
MORRIS LLOYD BAUER, DEFENDANT AND APPELLANT



Appeal from the District Court of Mercer County, South Central Judicial District, the Honorable David E. Reich, Judge.

The opinion of the court was delivered by: Maring, Justice.

AFFIRMED.

Opinion

[¶1] Morris Lloyd Bauer appeals from a criminal judgment entered after a jury found him guilty of aggravated assault and driving under the influence. On appeal, he argues there was insufficient evidence for the jury to find him guilty of aggravated assault, and the trial court failed to properly instruct the jury. We affirm the judgment.

I.

[¶2] Morris Bauer was charged with aggravated assault under N.D.C.C. § 12.1-17-02(2), a class C felony, and driving under the influence, a class B misdemeanor. Bauer and John Zimbro were involved in an altercation outside of a bar. Bauer, Dawn Bauer, Bauer's former wife, and John Zimbro were at a bar in Beulah, North Dakota. Dawn Bauer testified that both she and Zimbro spoke with Bauer in the bar. Bauer left and then later Zimbro and Dawn Bauer left. Zimbro gave Dawn Bauer a ride on his motorcycle to where her car was parked. She testified that, as they drove down the alley, they saw Bauer driving toward them in a Suburban.

[¶3] Zimbro testified Bauer slammed on his brakes and was hanging out of the door and was "hollering and carrying on." According to Dawn Bauer, Bauer came "flying out" of his Suburban, and swung at Zimbro. She testified that Zimbro pushed back, and an altercation ensued. Zimbro testified that both he and Bauer ended up in the Suburban. Dawn Bauer testified Bauer told Zimbro, "I'll cut you." Dawn Bauer also testified that Bauer's door was open and he reached back and had a knife, and "went at [Zimbro]." Zimbro testified they were in the Suburban when Bauer pulled a knife, described as both a buck knife and a folding knife, and cut Zimbro's arm. Zimbro testified he saw Bauer fold it up and put it back down by the console, and then he pulled the knife again and stated, "I'll cut you." Bauer swung at Zimbro's face and cut him across the nose. Zimbro got out of the Suburban. After Zimbro was cut, Dawn Bauer testified that Bauer remained in the Suburban with the door closed, but the window open, and Zimbro repeatedly kicked Bauer through the window. Zimbro testified that he also kicked Bauer after Bauer threatened to shoot him. Zimbro's report to the police did not mention Bauer swung first, and mentioned Zimbro pushed Bauer into the Suburban.

[¶4] Bauer did not testify. At trial, Bauer argued he acted in self-defense. An officer testified, in contrast to Zimbro's testimony about "hollering and carrying on," that Bauer reported to law enforcement he yelled "Dawn" in the alley, and Zimbro kicked him in the face through the Suburban. Bauer also told law enforcement he never exited the Suburban. He reported he had used a pair of hair clippers, and he did not know whether he cut Zimbro.

[¶5] At trial, Bauer moved for a judgment of acquittal under N.D.R.Crim.P. 29, arguing the knife was not a dangerous weapon and that possessing it under the circumstances did not indicate an intent or readiness to inflict serious bodily injury. The trial court denied the motion. The trial court also refused to provide the jury with the jury instructions Bauer had requested. Bauer objected to the court's instructions, arguing the court did not provide the essential elements of the crime and had failed to instruct the jury on its duty to follow the essential elements of aggravated assault. The jury found him guilty of aggravated assault and driving under the influence. Bauer appeals, arguing there was insufficient evidence to convict him of aggravated assault, and the trial court failed to properly instruct the jury.

II.

[¶6] Bauer argues this Court should reverse his conviction because there was insufficient evidence to show that he possessed the knife with the intent or readiness to inflict serious bodily injury. He also argues there was insufficient evidence to show that the knife met the definition of a weapon sufficient to constitute aggravated assault.

[¶7] This Court has stated its standard of review when the sufficiency of the evidence is challenged:

Appellate review of the sufficiency of the evidence for a jury verdict is very limited. When the sufficiency of evidence to support a criminal conviction is challenged, 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. The defendant bears the burden of showing the evidence reveals no reasonable inference of guilt when viewed in the light most favorable to the verdict. When considering insufficiency of the evidence, we will not reweigh conflicting evidence or judge the credibility of witnesses. . . . A jury may find a defendant guilty even though evidence exists which, if believed, could lead to a verdict of not guilty.

State v. Dahl, 2009 ND 204, ¶ 6, 776 N.W.2d 37 (citation omitted). "Whether the defendant was in possession of a dangerous weapon while committing the offense charged is a question for the trier of fact." State v. Schweitzer, 510 N.W.2d 612, 614 (N.D. 1994).

[¶8] Under N.D.C.C. § 12.1-17-02(2), aggravated assault is "[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." Section 12.1-01-04(6), N.D.C.C., provides:

"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 knucks, 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.

[ΒΆ9] We hold there is sufficient evidence to support an aggravated assault conviction. In his brief, Bauer stated, "[a]lthough Bauer contends the knife was not a 'dangerous weapon', Bauer acknowledges in this case, viewing the evidence in the light most favorable to the verdict, that the knife became a weapon." There was testimony from which the jury could draw an inference reasonably tending to show that a knife was "a dangerous weapon or other weapon" and that possession of the knife indicated a readiness to inflict serious bodily injury. After Zimbro, Dawn Bauer, and Bauer left the bar, Bauer approached Zimbro and Dawn Bauer in an alley. According to Zimbro, Bauer drove the Suburban down the alley at a high speed, slammed on his brakes, was hanging out the door, and was "hollering and carrying on." Zimbro testified that Bauer came after him and swung his fists. Zimbro testified that Bauer told him, "I'll cut you." Zimbro testified that Bauer ...


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