from the District Court of Burleigh County, South Central
Judicial District, the Honorable Gail Hagerty, Judge.
Spahr, Burleigh County Assistant State's Attorney,
Bismarck, ND, for plaintiff and appellee.
C. Kraus-Parr, Grand Forks, ND, for defendant and appellant.
1] Arthur Lee Crissler appeals a district court judgment
after a jury convicted him of possessing a weapon in a
correctional facility. Because sufficient evidence was
presented to support the jury's verdict, and the
testimony regarding the potential use and composition of an
altered pencil was admissible, we affirm.
2] On October 13, 2016, the State charged Crissler with
possessing an object in a correctional facility intended to
be used for an assault on another person or to damage
property. The charges arose from the search of Crissler's
cell block on September 3, 2016 during which a pencil wrapped
in paper, thread, and elastic was found concealed underneath
the mattress of Crissler's bunk.
3] At trial, Burleigh County Detention Center Officer Lucas
Kuntz testified about the search and discovery of the pencil.
Kuntz testified that the pencil was a flex pencil that is
very flexible in an unaltered state. The pencil found
concealed under Crissler's mattress was wrapped in paper
that had first been wetted and then, when in place, allowed
to dry which had the effect of increasing the rigidity of the
pencil. The rigidity was further increased by thread-like
string. Finally, elastic that appeared to come from a pair of
underwear was added in a manner that would have made the
pencil easier to grip. The sharpened, stiffened, and
reinforced flexible pencil protruded from the handle made of
reinforced elastic in a manner that could allow a person to
stab another person while simultaneously punching him. The
pencil, as modified, was admitted as an exhibit. Kuntz also
testified that Crissler admitted the pencil was his. Crissler
also told Kuntz, "I [Crissler] could see how you could
think this [the modified pencil] is a weapon."
4] The jury found Crissler guilty of possessing a weapon in a
correctional facility under N.D.C.C. § 12-44.1-21(5).
The statute provides, "[i]t is unlawful for an inmate in
a correctional facility to willfully procure, make, or
possess an object, including a shard made of any material or
a weapon, firearm, ammunition, or explosive material,
intended to be used for an assault on another person or to
damage property." N.D.C.C. § 12-44.1-21(5).
5] Crissler argues there is insufficient evidence to sustain
the jury's verdict against him. Crissler argues the State
failed to establish the pencil was a weapon and that Crissler
intended to use the pencil as a weapon. Crissler also argues
the district court erred by allowing speculative testimony by
Kuntz that the pencil could be used to stab, the
modifications made the pencil more rigid, the paper was
formed and wetted, and the pencil could be used to damage
6] "The determination of whether to allow opinion
testimony from a lay or expert witness is within the sound
discretion of the district court and will not be reversed
absent an abuse of discretion." State v. Evans,
2013 ND 195, ¶ 16, 838 N.W.2d 605. The district court
abuses its discretion if "it acts in an arbitrary,
unreasonable, or unconscionable manner, if its decision is
not the product of a rational mental process leading to a
reasoned determination, or if it misinterprets or misapplies
the law." Id. (quoting State v. Moos,
2008 ND 228, ¶ 30, 758 N.W.2d 674).
7] Kuntz's testimony challenged by Crissler is the
opinion of a lay witness governed by N.D.R.Ev. 701. Rule 701
of the North Dakota Rules of Evidence provides:
If a witness is not testifying as an expert, testimony in the
form of an opinion is ...