State v. McCreary , 2021 ND 212 ( 2021 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
DECEMBER 1, 2021
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2021 ND 212State of North Dakota, Plaintiff and Appellee
v.
Michael Jon McCreary, Defendant and Appellant
No. 20210064
Appeal from the District Court of Williams County, Northwest Judicial
District, the Honorable Kirsten Marie Sjue, Judge.
AFFIRMED.
Opinion of the Court by McEvers, Justice.
Nathan K. Madden, Assistant State’s Attorney, Williston, ND, for plaintiff and
appellee; submitted on brief.
Kiara C. Kraus-Parr, Grand Forks, ND, for defendant and appellant.
State v. McCreary
No. 20210064
McEvers, Justice.
[¶1] Michael Jon McCreary appeals from a criminal judgment entered after
a jury found him guilty of aggravated assault with a dangerous weapon. On
appeal, McCreary contends the evidence is insufficient to support his
conviction, arguing the flashlight used in the assault is not a “dangerous
weapon” as defined by N.D.C.C. § 12.1-01-04(6). We affirm, concluding a
flashlight may be considered a dangerous weapon under N.D.C.C. § 12.1-01-
04(6) and sufficient evidence supports McCreary’s conviction.
I
[¶2] On April 6, 2019, McCreary was attending an event at a hotel in
Williston. J.P., the victim, was working as a security guard for the hotel.
During the course of the night, McCreary was involved in an altercation with
another guest behind the hotel.
[¶3] J.P. noticed the fight and attempted to break it up. J.P. testified he
approached McCreary and told him “we can’t have this fighting on hotel
property.” J.P. testified McCreary told him to “[b]ack out” and asked J.P., “Do
you want to get your ass kicked?” At one point, J.P.’s attention was drawn away
from McCreary. When J.P. turned back, McCreary swung a “cylinder object”
and struck J.P. in the forehead. J.P. described the object as “something very
similar to a Maglite” although he “didn’t see the head of the flashlight itself.”
Photographs were introduced showing a large, dark-colored flashlight
“approximately one foot in length” attached to a holster on McCreary’s hip
earlier in the night.
[¶4] McCreary was convicted of aggravated assault with a dangerous weapon
under N.D.C.C. § 12.1-17-02(1)(b). The district court sentenced McCreary to
five years’ imprisonment with three years suspended with credit for time
served.
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II
[¶5] The Amended Information reflects the State charged McCreary with
aggravated assault, a class C felony under N.D.C.C. §§ 12.1-17-02(1)(b) and
12.1-32-02.1. A person may be guilty of aggravated assault under N.D.C.C. §
12.1-17-02(1)(b) if that person:
[k]nowingly causes 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[.]
The State alleged in the Amended Information:
Michael Jon McCreary, knowingly caused bodily injury or
substantial bodily injury to J.P. with a dangerous weapon or other
weapon, the possession of which under the circumstances indicates
an intent or readiness to inflict serious bodily injury, to wit: struck
J.P. in the head with a flashlight, causing J.P. to suffer a large
swollen lump/knot to the forehead.
[¶6] McCreary argues “[t]he State did not charge the alternative part of the
statute, N.D.C.C. § 12.1-17-02(1)(b) that would cover a factual scenario of an
assault with an ‘other weapon.’” The Amended Information clearly states
McCreary was charged under N.D.C.C. § 12.1-17-02(1)(b). McCreary’s
argument that he was not charged with a dangerous weapon or other weapon
is without merit. The issue is also moot. While McCreary was charged with
using a dangerous weapon or other weapon, the jury was only instructed on
use of a dangerous weapon.
III
[¶7] McCreary argues a flashlight is not a dangerous weapon as defined by
N.D.C.C. § 12.1-01-04(6). He argues that because a flashlight does not
constitute a dangerous weapon, the evidence was insufficient to support his
conviction for aggravated assault with a dangerous weapon under N.D.C.C. §
12.1-17-02. Although McCreary did not make this precise argument when
moving for acquittal under N.D.R.Crim.P. 29, he did contest the sufficiency of
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the evidence. Therefore, “we first must address the meaning of N.D.C.C. § 12.1-
01-04(6) to determine ‘if there is competent evidence allowing the jury to draw
an inference reasonably tending to prove guilt and fairly warranting a
conviction.’” Vetter, 2013 ND 4, ¶ 10 (quoting State v. Bauer, 2010 ND 109, ¶
7, 783 N.W.2d 21).
[¶8] Our standard of review for interpreting a criminal statute is well
established:
Construction of a criminal statute is a question of law, fully
reviewable by this Court. Our primary goal in interpreting
statutes is to ascertain the Legislature’s intentions. In
ascertaining legislative intent, we first look to the statutory
language and give the language its plain, ordinary and commonly
understood meaning. We interpret statutes to give meaning and
effect to every word, phrase, and sentence, and do not adopt a
construction which would render part of the statute mere
surplusage. When a statute’s language is ambiguous because it is
susceptible to differing but rational meanings, we may consider
extrinsic aids, including legislative history, along with the
language of the statute, to ascertain the Legislature’s intent. We
construe ambiguous criminal statutes against the government and
in favor of the defendant.
State v. Buchholz, 2005 ND 30, ¶ 6, 692 N.W.2d 105. We first examine the plain
language of the statute. Id. Section 12.1-01-04(6), N.D.C.C., provides:
“Dangerous weapon” includes any switchblade or gravity knife,
machete, scimitar, stiletto, sword, or dagger; any billy, blackjack,
sap, bludgeon, cudgel, metal knuckles, or sand club; any slingshot;
any bow and arrow, crossbow, or spear; any weapon that 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.
The State submitted proposed jury instructions mirroring the statutory
definition. Although the district court’s final jury instructions used the phrase
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“includes, but is not limited to,” McCreary did not object to the instruction and
has not argued on appeal that the jury was not properly instructed. The jury
instructions are the law of the case. State v. Friesz, 2017 ND 177, ¶ 37, 898
N.W.2d 688 (“Unchallenged jury instructions become the law of the case.”).
[¶9] McCreary argues that a cylinder is not a dangerous weapon as defined
by N.D.C.C. § 12.1-01-04(6). A flashlight is also not enumerated in N.D.C.C. §
12.1-01-04(6). We have previously considered whether objects not specifically
named in N.D.C.C. § 12.1-01-04(6) may be considered dangerous weapons as a
matter of law. See Vetter, 2013 ND 4. Vetter was convicted of aggravated
assault with a dangerous weapon after striking the victim with his vehicle. Id.
at ¶¶ 2-4. On appeal, Vetter argued a vehicle was not a dangerous weapon
under N.D.C.C. § 12.1-01-04(6). Id. at ¶ 5. In affirming Vetter’s conviction, we
held “[w]hether a vehicle is a dangerous weapon is dependent upon the guiding
statute.” Id. at ¶ 14. Holding that the plain language of the statute was not
exhaustive, we agreed with the State’s contention “not that a vehicle will
always be a dangerous weapon but that it may be used as one.” Id. at ¶ 15.
This court refused to hold a vehicle may never be considered a dangerous
weapon under N.D.C.C. § 12.1-01-04(6), instead choosing to permit the fact
finder “to determine whether an object is a dangerous weapon based on how
the object is used.” Id. at ¶ 16.
[¶10] Because the language of N.D.C.C. § 12.1-01-04(6) is not exhaustive, it
permits objects other than those enumerated to be considered dangerous
weapons. Although this Court has never faced the question whether a
flashlight may be considered a dangerous weapon, we hold that whether a
flashlight is a dangerous weapon is dependent on the statute and the facts of
the case. Other jurisdictions have similarly determined the question was one
for the fact finder. See People v. Ragland, 165 N.W.2d 639, 640 (Mich. 1968)
(“It was for [the jury] to determine as a question of fact whether or not the
flashlight was a dangerous weapon.”); State v. Pleasant, 2010-1533, p. 8 (La.
App. 4 Cir. 5/18/11); 66 So.3d 51, 56 (“The dangerousness of an object by reason
of the manner in which it was used is an issue of fact for
the jury or fact finder to decide.”).
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IV
[¶11] McCreary’s argument rests on whether there was sufficient evidence for
the jury to determine the flashlight in this case was used as a dangerous
weapon.
[¶12] “Our review of the sufficiency of the evidence for a jury verdict is limited.”
Vetter, 2013 ND 4, ¶ 17. The standard of review on an appeal based on
sufficiency of the evidence is well established:
We look only to the evidence and reasonable inferences most
favorable to the verdict to ascertain if there is substantial evidence
to warrant the conviction. A conviction rests upon insufficient
evidence only when, after reviewing the evidence in the light most
favorable to the prosecution and giving the prosecution the benefit
of all inferences reasonably to be drawn in its favor, no rational
fact finder could find the defendant guilty beyond a reasonable
doubt. In considering a sufficiency of the evidence claim, we do not
weigh conflicting evidence, or judge the credibility of witnesses.
State v. Gray, 2017 ND 108, ¶ 15, 893 N.W.2d 484 (quoting Vetter, at ¶ 17).
“This Court assumes the jury believed all evidence supporting a guilty verdict
and disbelieved any evidence to the contrary.” State v. Yoney, 2020 ND 118, ¶
19, 943 N.W.2d 791. “Whether the defendant was in possession of a dangerous
weapon while committing the offense charged is a question for the trier of fact.”
Vetter, at ¶ 6 (quoting Bauer, 2010 ND 109, ¶ 7).
[¶13] Reviewing the evidence in the light most favorable to the prosecution,
and giving the verdict the benefit of all inferences reasonably drawn from the
evidence, a rational fact finder could conclude beyond a reasonable doubt the
flashlight used by McCreary constituted a dangerous weapon. We have said
whether an object is a dangerous weapon “is ordinarily a question of fact to be
determined by all the attendant circumstances, and especially by the mode of
use.” Vetter, 2013 ND 4, ¶ 15 (quoting Charles E. Torcia, Wharton’s Criminal
Law § 197 at 469 (15th ed. 1994)). “The dangerous or deadly character of a
weapon is determined by the effect likely to be produced by it.” Id. J.P. testified
McCreary struck him with a “long cylinder black object” that was “very similar
5
to a Maglite.” J.P. also testified he saw McCreary swing a cylinder object and
that McCreary used “a powerful overhand blow” to strike J.P. in the head. A
jury could reasonably find McCreary used his flashlight as a dangerous weapon
under the circumstances.
V
[¶14] A flashlight may be considered a dangerous weapon under N.D.C.C. §
12.1-01-04(6), and sufficient evidence exists to support McCreary’s conviction.
We affirm the district court’s judgment.
[¶15] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
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