Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Steven E. McCullough, Judge.
The opinion of the court was delivered by: Crothers, Justice.
North Dakota Supreme and/or Appellate Courts
N.D. Supreme CourtState v. Vetter,
This opinion is subject to petition for rehearing. [Go to Documents]
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AFFIRMED. Opinion of the Court by 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.
[¶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.
[¶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 ...