from the District Court of Stark County, Southwest Judicial
District, the Honorable Rhonda R. Ehlis, Judge.
Brittney A. Bornemann, Assistant State's Attorney,
Dickinson, ND, for plaintiff and appellee; submitted on
A. Powell, Dickinson, ND, for defendant and appellant.
1] Raymond Christensen appeals from a criminal judgment and
challenges his jail sentence for leaving the scene of an
accident involving injury and aggravated reckless driving.
Because the district court substantially relied upon an
impermissible factor in sentencing Christensen to jail, we
vacate the sentence and remand for resentencing.
2] On April 15, 2017, Christensen was involved in a motor
vehicle accident in Stark County. He was charged with leaving
the scene of an accident involving injury in violation of
N.D.C.C. § 39-08-04, a class C felony, and aggravated
reckless driving in violation of N.D.C.C. § 39-08-03, a
class A misdemeanor. On November 14, 2017, Christensen pled
guilty to both charges. A presentence investigation
recommended that Christensen be sentenced to a period of
supervised probation by the Department of Corrections.
3] On February 6, 2018, the district court held a sentencing
hearing during which the responding law enforcement officer
and the victim's fiancé testified. The State
argued that Christensen should be sentenced to serve time in
jail. Christensen argued he should be sentenced to probation
as recommended by the presentence investigation and as
required by the presumptive probation statute, N.D.C.C.
§ 12.1-32-07.4(1). The court found there were no
aggravating factors present to avoid presumptive probation
under N.D.C.C. § 12.1-32-07.4(2), but questioned whether
Christensen's vehicle could be considered a
"dangerous weapon," an exception to presumptive
probation under N.D.C.C. § 12.1-32-07.4(1). The court
allowed the parties to brief the issue.
4] The parties' briefs focused on whether
Christensen's vehicle was a "dangerous weapon"
under this Court's decision in State v. Vetter,
2013 ND 4, ¶¶ 1, 4, 826 N.W.2d 334, in which the
defendant was charged with and convicted by a jury of
aggravated assault with a dangerous weapon consisting of a
vehicle and where the jury specifically found that the
defendant used a dangerous weapon to inflict injury. Vetter
intentionally drove his vehicle toward the victim, continuing
to drive forward after he fell, and rolled both front and
rear tires over him. Vetter, at ¶ 17. This
Court held that, depending on how it is used, a vehicle may
constitute a "dangerous weapon" as defined in
N.D.C.C. § 12.1-01-04(6) for purposes of applying the
mandatory minimum sentencing provisions of N.D.C.C. §
12.1-32-02.1, and the jury's finding on the issue was
supported by the evidence. Vetter, at ¶¶
4, 15, 16.
5] At the second sentencing hearing held on April 3, 2018,
the district court relied on Vetter and found
"presumptive probation does not apply because there is
an exception because the offense involved a dangerous weapon
in this case, which was your vehicle." The court
sentenced Christensen to three years in jail with all but 360
days suspended for three years followed by supervised
probation on the class C felony charge, and a concurrent
sentence of 360 days in jail with 360 days suspended for two
years after his release from incarceration followed by
supervised probation on the class A misdemeanor charge.
6] Christensen argues the district court erred in finding he
committed a crime while using a dangerous weapon and the
court misinterpreted the presumptive probation statute in
sentencing him to jail.
7] Our standard for reviewing criminal sentences is well
explained that "[o]ur appellate review of a criminal
sentence is very limited." State v. Ennis, 464