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Published September 18 2012

Can Humvee be a dangerous weapon?

BISMARCK – A West Fargo landlord facing a two-year prison term for running over a man with his Humvee appealed his case to the North Dakota Supreme Court on Tuesday, arguing that jurors shouldn’t have been allowed to consider the vehicle a dangerous weapon.

A Cass County jury found Alois Vetter guilty last October of aggravated assault and reckless endangerment for running over his former tenant, 31-year-old Brian Hemphill, in February 2011.

Because the jury found that the Humvee constituted a dangerous weapon, Vetter was sentenced in January to a mandatory minimum of two years in prison, plus a year of probation, on the aggravated assault conviction.

Judge Steven McCullough stayed the sentence until Vetter’s appeal could be heard by the high court. Vetter, 74, has remained free since then on $25,000 cash bail.

Attorney Daniel Gast, who is representing Vetter in his appeal, argued Tuesday that automobiles aren’t included in the “dangerous weapons” list in state law and shouldn’t be considered as such.

Vetter’s trial attorney had objected to the jury being instructed to consider whether Vetter’s Hummer was a dangerous weapon.

Gast argued against giving too much weight to a portion of the law that states a dangerous weapon “is not limited to” the list of weapons included in the law, among them a sword, crossbow, dagger and any weapon capable of expelling a projectile.

“If that’s given deference, it would write the rest of the list out of existence, basically,” he said, adding, “a dangerous weapon could be anything.”

In his brief, Gast warned that considering a car a dangerous weapon “would open a host of other problems for the legal system in North Dakota.” For example, people on probation who are barred from possessing a dangerous weapon couldn’t legally drive.

But prosecutor Cherie Clark, an assistant Cass County state’s attorney, argued that the issue boils down to intent, which is for a jury to decide.

“At the time you form the intention, had the intention to use that vehicle to run somebody over to hurt them, it would become a dangerous weapon,” she said.

Clark argued that the 1975 Legislature purposely inserted the language “not limited to” in order to more broadly define what can be considered a dangerous weapon.

“If they intended it to be a similar device, they would have done it that way,” she said.

The Supreme Court took the matter under advisement and will issue its opinion at a later date.

Readers can reach Forum reporter Mike Nowatzki at (701) 241-5528

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