IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2026 ND 39
State of North Dakota, Plaintiff and Appellee
v.
Cody Joseph Reese, Defendant and Appellant
No. 20250161
Appeal from the District Court of Ward County, North Central Judicial District,
the Honorable Gary H. Lee, Judge.
AFFIRMED.
Opinion of the Court by Tufte, Justice.
Christopher W. Nelson (argued) and Jacob A. Schmidt (appeared), Assistant
State’s Attorneys, Minot, N.D., for plaintiff and appellee.
Thomas J. Burckhard, Minot, N.D., for defendant and appellant.
State v. Reese
No. 20250161
Tufte, Justice.
[¶1] Cody Reese appeals from a criminal judgment entered after a bench trial
at which he was convicted of terrorizing with a firearm. Reese argues the district
court erred in finding the terrorizing offense was committed with a firearm,
which finding required a mandatory minimum sentence of two years’
imprisonment. We affirm the judgment.
I
[¶2] The State charged Reese with eight counts of terrorizing with a dangerous
weapon or firearm and one count of preventing arrest. The State alleged Reese
threatened to shoot or kill people at a Minot restaurant and resisted arrest by law
enforcement. The terrorizing charges included an allegation that Reese
possessed a firearm while committing the offenses. If proven, that allegation
carries a mandatory minimum sentence of two years’ imprisonment. The district
court granted the State’s motion to dismiss seven of the terrorizing counts, and
Reese proceeded to a bench trial on one count of terrorizing and one count of
preventing arrest.
[¶3] At trial, Reese stipulated to all essential elements of the terrorizing offense,
contesting only the application of the mandatory minimum sentence for
possessing a firearm. The court heard testimony from three witnesses—a
restaurant manager, a patron, and a responding officer—and viewed the
restaurant’s security-camera video.
[¶4] The restaurant manager testified that he stopped serving an inebriated
Reese and asked him to leave. Reese threatened to kill him and “shoot up the
entire restaurant, and everybody in[side].” The restaurant manager and patron
both testified that Reese said he had a gun and was going to shoot people in the
restaurant, but neither saw a firearm. The manager testified Reese had a
backpack about “a foot from him on the stool next to him” and was reaching into
it after stating he had a gun and “insinuating” the gun was in the backpack. The
patron testified Reese “said that he had his gun in his backpack, and he gestured
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with the backpack.” When the responding officer arrived, he attempted to detain
Reese and reached for the backpack, which was then over Reese’s shoulder.
Reese pulled away. After Reese was arrested, law enforcement searched the
backpack and found a firearm. In closing, Reese argued the armed offender
statute did not apply because he did not threaten anyone with the firearm. That
is, Reese did not brandish or use it in committing terrorizing.
[¶5] The district court accepted Reese’s admission to terrorizing and found him
guilty of preventing arrest. After trial, the court found that Reese committed
terrorizing with a firearm and that the armed offender statute applied,
concluding the firearm does not need to be produced while committing the
offense. Rather, the court explained, the statute applies if the offender possessed
a firearm and threatened to injure another through the use of the firearm. As a
result, the court applied the mandatory minimum, sentenced Reese to two years’
imprisonment, and entered judgment.
II
[¶6] Reese argues the district court erred in finding the terrorizing offense was
committed with a firearm and applying the mandatory minimum sentence under
N.D.C.C. § 12.1-32-02.1. Section 12.1-32-02.1, N.D.C.C., states:
1. Notwithstanding any other provision of this title, a term of
imprisonment must be imposed upon an offender and served
without benefit of parole when:
a. In the course of committing an offense, the offender inflicts
or attempts to inflict bodily injury upon another, threatens
or menaces another with imminent bodily injury with a
dangerous weapon, explosive, destructive device, or
firearm;
....
2. This requirement applies only when possession of a dangerous
weapon, explosive, destructive device, or firearm has been
charged and admitted or found to be true in the manner
provided by law, and must be imposed as follows:
....
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b. If the offense for which the offender is convicted is a class C
felony, the court shall impose a minimum sentence of two
years’ imprisonment.
[¶7] Subsection 2 of N.D.C.C. § 12.1-32-02.1 “applies only if the possession of a
dangerous weapon, an explosive, or a firearm is an essential element of the crime
committed or if the trier of fact makes a special finding that in the course of
committing the offense the accused was in possession of a dangerous weapon,
an explosive, or a firearm.” State v. Sheldon, 312 N.W.2d 367, 370 (N.D. 1981); see
also N.D.C.C. § 12.1-01-04(26) (defining “[p]ossesses” in the criminal code to
include “[d]irect physical control of something on or around the individual’s
person”). “We have recognized that the purpose of Section 12.1-32-02.1 is to deter
violent crime and vindicate the public’s interest in punishing those who commit
serious crimes with a firearm.” State v. Meier,
447 N.W.2d 506, 508 (N.D. 1989).
[¶8] The parties do not dispute that the State charged Reese with terrorizing
with a firearm or that the district court, as trier of fact after Reese waived his
right to a jury trial, made a special finding that Reese possessed the firearm at
the time of the crime. Reese does not challenge the possession finding. Rather,
he argues he did not threaten anyone with a firearm within the meaning of
N.D.C.C. § 12.1-32-02.1(1)(a).
[¶9] The district court interpreted N.D.C.C. § 12.1-32-02.1(1)(a) to apply when
the offender threatens to use a firearm to cause bodily injury. In other words, the
offender need only communicate the threat to use a firearm; he does not need to
actually brandish the firearm while threatening the victim. Reese contends the
court misinterpreted what it means to threaten another with bodily injury with
a firearm, asserting “with” a firearm means using or brandishing.
[¶10] 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
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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. Vetter, 2013 ND 4, ¶ 11,
826 N.W.2d 334.
[¶11] When a word is not defined by the Legislature, we look to the plain,
ordinary, and commonly understood meaning of the word. State v. Rufus,
2015
ND 212, ¶¶ 15, 19,
868 N.W.2d 534. Both the State and Reese provide dictionary
definitions of “with.” Webster’s New World Dictionary (Second College Edition
1980) has 22 primary definitions of “with.” In relevant part, “with” is defined as
“by means of; using” or “by the use, presence, etc. of; by.” Id. at 1633. One
definition of “by” is “through the means, work, or operations of.” Id. at 194.
When we substitute these definitions for the second “with” in N.D.C.C. § 12.1-
32-02.1(1)(a), the statute reads in relevant part: In the course of committing an
offense, the offender threatens another with imminent bodily injury using, or
through the use or means of, a firearm. Under these definitions, the statute
applies in this case. In the course of committing terrorizing, Reese threatened
another with imminent bodily injury through the use or means of a firearm.
Nothing in the statute limits “with” to using or brandishing the firearm. Compare
N.D.C.C. § 12.1-32-02.1(1)(a), with N.D.C.C. § 12.1-32-09(1)(e) (allowing a court
to sentence a convicted offender to an extended sentence if “[t]he offender is
especially dangerous because the offender used a firearm . . . in the commission
of the offense or during the flight therefrom” (emphasis added)).
[¶12] Reese does not frame his argument in terms of sufficiency of the evidence
to support his conviction for terrorizing with a firearm. Rather, he argues the
district court misinterpreted N.D.C.C. § 12.1-32-02.1(1)(a), causing it to misapply
the mandatory minimum sentence under N.D.C.C. § 12.1-32-02.1(2)(b). We
conclude the district court applied a reasonable definition to the commonly-used
word “with” when it found Reese threatened to injure another through the use
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of a firearm. State v. Castleman, 2022 ND 7, ¶ 12,
969 N.W.2d 169; State v. O’Toole,
2009 ND 174, ¶ 12,
773 N.W.2d 201 (“The jury could use any reasonable
definition of the word ‘create’ in deciding whether O’Toole was guilty.”); Rufus,
2015 ND 212, ¶¶ 19-20 (applying similar rule after bench trial). Viewing the
evidence in the light most favorable to the judgment, sufficient evidence
supports that finding and the application of the mandatory minimum in the
judgment. See State v. Vetter,
2025 ND 197, ¶ 15,
27 N.W.3d 687. Specifically, the
evidence shows that Reese said he had a gun in his backpack, which was next to
him, that he was reaching into the backpack, and that he told the manager and
patrons he was going to shoot and kill them. We conclude the court did not err
in interpreting N.D.C.C. § 12.1-32-02.1 or in applying the mandatory minimum
sentence.
III
[¶13] We affirm the judgment.
[¶14] Lisa Fair McEvers, C.J.
Daniel J. Crothers
Jerod E. Tufte
Jon J. Jensen
Douglas A. Bahr
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