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State v. Christensen

Supreme Court of North Dakota

January 15, 2019

State of North Dakota, Plaintiff and Appellee
v.
Raymond Arthur Christensen, Defendant and Appellant

          Appeal 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 brief.

          Markus A. Powell, Dickinson, ND, for defendant and appellant.

          OPINION

          McEvers, Justice.

         [¶ 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.

         I

         [¶ 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.

         II

         [¶ 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 established:

         We have explained that "[o]ur appellate review of a criminal sentence is very limited." State v. Ennis, 464 ...


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