“Threatens … with a Firearm” Under N.D.C.C. § 12.1-32-02.1 Includes Communicated Threats When the Offender Possesses a Firearm—No Brandishing Required

1. Introduction

In State v. Reese, 2026 ND 39, the North Dakota Supreme Court addressed the scope of the State’s “armed offender” mandatory-minimum statute, N.D.C.C. § 12.1-32-02.1, in the context of a terrorizing conviction. Cody Joseph Reese was convicted after a bench trial of terrorizing and preventing arrest arising from an incident at a Minot restaurant. Reese stipulated to the essential elements of terrorizing but contested only whether the terrorizing offense was committed “with a firearm” so as to trigger a two-year mandatory minimum sentence for a class C felony.

The core issue on appeal was narrow but consequential: whether an offender “threatens or menaces another with imminent bodily injury with a … firearm” under § 12.1-32-02.1(1)(a) only when the firearm is brandished/used during the threat, or whether it is enough that the offender possesses a firearm and communicates a threat to use it.

2. Summary of the Opinion

The Court affirmed the judgment. It held that § 12.1-32-02.1(1)(a) applies when, in the course of committing an offense, the offender possesses a firearm and threatens imminent bodily injury through the use or means of that firearm, even if the firearm is not displayed or brandished at the moment of the threat.

Applying ordinary dictionary meanings of “with,” the Court concluded Reese’s statements that he had a gun in his backpack and would “shoot” or “kill” people, coupled with the backpack’s proximity and the discovery of a firearm inside it after arrest, supported the district court’s special finding and the mandatory minimum sentence.

3. Analysis

A. Precedents Cited

1) State v. Sheldon, 312 N.W.2d 367 (N.D. 1981)

State v. Sheldon supplies the structural prerequisite for applying § 12.1-32-02.1: the mandatory-minimum enhancement applies only when weapon possession is (i) an essential element of the crime, or (ii) separately charged and established via a special finding by the trier of fact. In Reese, this mattered because “terrorizing” itself does not necessarily require firearm possession; thus, the enhancement depended on the State charging possession and the district court making the required special finding after the jury trial was waived.

Reese did not dispute these Sheldon prerequisites on appeal—he conceded the special finding of possession—but Sheldon frames the legal lens: once possession is properly found, the remaining question is the meaning of “threatens or menaces … with a … firearm.”

2) State v. Meier, 447 N.W.2d 506 (N.D. 1989)

State v. Meier articulates the purpose of § 12.1-32-02.1: deterrence of violent crime and vindication of the public’s interest in punishing serious crimes committed with a firearm. Reese uses Meier less as a balancing test than as a policy anchor: the Court’s reading of “with” is consistent with a deterrence rationale that targets the increased risk and fear generated when an offender possesses a firearm and threatens to use it, even if the weapon is not displayed.

3) State v. Vetter, 2013 ND 4, 826 N.W.2d 334

State v. Vetter, 2013 ND 4 supplies the Court’s statutory interpretation framework: plain meaning first; avoid surplusage; if ambiguity remains, consider extrinsic aids; and apply the rule of lenity by construing ambiguous criminal statutes in favor of defendants. Reese is a plain-meaning decision in form and function—the Court concluded “with” was reasonably understood through dictionary definitions and did not require brandishing.

4) State v. Rufus, 2015 ND 212, 868 N.W.2d 534

State v. Rufus supports the method of giving undefined words their ordinary meaning and tolerating reasonable factfinder usage of common words. Reese relies on Rufus both for interpretive method (plain meaning for undefined terms) and for the parallel that, even in a bench trial, the factfinder may apply a reasonable definition consistent with common usage.

5) State v. Castleman, 2022 ND 7, 969 N.W.2d 169

State v. Castleman is cited for the proposition that courts may apply “a reasonable definition” to commonly used words. In Reese, Castleman helps justify the district court’s and Supreme Court’s reliance on ordinary definitions of “with” rather than importing a narrower, extra-textual “brandishing” requirement.

6) State v. O'Toole, 2009 ND 174, 773 N.W.2d 201

State v. O'Toole reinforces the same principle in the jury context: jurors may use any reasonable definition of a commonly understood term. Reese analogizes that principle to a bench trial and uses it to validate the district court’s reading of “with” as “through the use or means of,” rather than “brandishing.”

7) State v. Vetter, 2025 ND 197, 27 N.W.3d 687

State v. Vetter, 2025 ND 197 is invoked for the evidentiary posture: viewing the evidence in the light most favorable to the judgment, there was sufficient evidence supporting the firearm-related finding and the mandatory minimum. Although Reese framed the appeal as statutory interpretation, the Court still noted the record evidence that made the district court’s application plausible: the statements about the gun, the backpack’s proximity, reaching into it, and discovery of the firearm.

B. Legal Reasoning

The Court’s reasoning proceeds in three steps:

  1. Identify what is and is not disputed. Reese conceded the enhancement was properly charged and that the court made a special finding he possessed the firearm during the offense. The only dispute was whether he “threaten[ed] … with” a firearm.
  2. Apply plain meaning to the statutory text. The Court emphasized that “with” is undefined in the criminal code and turned to dictionary definitions. It adopted definitions of “with” such as “by means of; using” and “by the use, presence, etc. of; by,” and further defined “by” as “through the means.” Substituting these definitions, the statute covers threats made “using” or “through the use or means of” a firearm.
  3. Reject an implied brandishing requirement as inconsistent with the text and comparative statutory language. Reese argued “with” implies brandishing/using the firearm in a more direct, displayed manner. The Court answered by noting the Legislature used different words elsewhere—specifically, N.D.C.C. § 12.1-32-09(1)(e) refers to when an offender “used a firearm.” That contrast suggested the armed offender statute is broader than “used,” and that reading “with” as “brandished” would narrow the statute without textual basis.

On the facts, the Court concluded the district court’s finding fit the statute as interpreted: Reese said he had a gun in his backpack; the backpack was next to him and later over his shoulder; he reached toward it; and he threatened to “shoot” and “kill” people. The firearm’s later recovery from the backpack corroborated that the threats were made “through the use or means of” a firearm he possessed.

C. Impact

State v. Reese clarifies that, for § 12.1-32-02.1(1)(a), a firearm need not be displayed for a threat to be “with a firearm.” The operative combination is: (1) possession during the offense (properly charged and found/admitted), and (2) a threat or menace of imminent bodily injury communicated as being carried out by firearm.

Likely downstream effects include:

  • Charging and trial strategy: prosecutors may rely on verbal threats indicating firearm use, supported by possession evidence, to seek mandatory minimums even when no witness sees a gun.
  • Fact patterns involving concealed firearms: cases where the firearm is in a bag, waistband, or nearby location may more readily meet § 12.1-32-02.1, provided the threat is connected to the firearm and possession is established.
  • Defense focus: challenges may shift toward disputing (i) possession at the time of the offense (including constructive possession), (ii) whether the threat conveyed imminent bodily injury “through” firearm use, or (iii) whether the threat was sufficiently imminent or directed to a person.
  • Statutory interpretation signal: the Court’s reliance on common dictionary meanings and intra-code word choice (“with” versus “used”) signals that future disputes over enhancement language may similarly turn on ordinary meaning and comparisons across related provisions.

4. Complex Concepts Simplified

  • “Mandatory minimum”: a sentence floor the judge must impose if the statutory conditions are met; the offender must serve it without parole as specified by the statute.
  • “Armed offender statute” (N.D.C.C. § 12.1-32-02.1): a sentencing enhancement requiring imprisonment when, during an offense, the offender inflicts/attempts injury or threatens imminent injury using certain weapons (including firearms), and weapon possession is properly charged and found.
  • “Special finding”: a specific determination by the factfinder (judge or jury) on an enhancement fact—here, that the defendant possessed a firearm “in the course of committing” the offense—separate from the basic elements of the underlying crime.
  • “Possession” in the criminal code: includes not only holding an item but having direct physical control of something on or around the person (e.g., in a backpack next to or on the offender), as referenced in N.D.C.C. § 12.1-01-04(26).
  • Plain meaning and the “rule of lenity”: courts first apply ordinary meaning; if a criminal statute remains genuinely ambiguous, uncertainty is resolved in the defendant’s favor. Reese effectively holds that “with” was not so ambiguous as to require narrowing it to “brandish.”

5. Conclusion

State v. Reese, 2026 ND 39 establishes a clear rule for North Dakota’s armed-offender mandatory minimum: an offender “threatens … with” a firearm under N.D.C.C. § 12.1-32-02.1(1)(a) when the offender possesses a firearm during the offense and communicates a threat of imminent bodily injury to be carried out by firearm—even if the firearm is never produced or brandished. The decision strengthens the statute’s deterrent reach to threats backed by actual possession, particularly in scenarios involving concealed or bag-carried firearms.