A New Town man is appealing his assault conviction to the North Dakota State Supreme Court.

Kelvin Antone McAllister is arguing that his conviction should be overturned because he struck Joshua Hale in self defense and in defense of others during a fist fight at a grocery store warehouse in New Town on Aug. 17, 2018.

McAllister had originally been charged with Class C felony aggravated assault. He was found not guilty of aggravated assault but was found guilty of the lesser offense of Class A misdemeanor simple assault by a jury in May 2019.

In the appeal, the defense is arguing that there was a problem with the instructions given to the jury, that Judge Gary Lee erred in denying the defendant’s motion to acquit him and that there were insufficient evidence to sustain an assault conviction. McAllister also argues that the district court erred in ordering him to pay $32,063.68 in restitution to the victim.

The prosecution argues that the conviction should be upheld and there was no problem with the jury instructions and there was enough evidence for the guilty verdict to assault and the restitution order should stand.

According to court documents, Hale had threatened McAllister prior to the incident. McAllister, who had been working at Jason’s Superfoods in New Town and gone to the warehouse to get supplies, got into a confrontation there with Hale. Hale allegedly charged McAllister and missed striking a female employee. McAllister then struck Hale in the face several times and Hale hit his head on the table legs in the warehouse when he fell. Hale was semi-conscious when authorities arrived. Hale had swelling on his left eye and the left side of his forehead, a gash on his left eyebrow, blood in his nose and mouth and a gash on the left side of his head above his ear.

Oral arguments are scheduled to take place on Monday before the supreme court. Eric Baumann represents the defense and Mountrail County State’s Attorney Wade Enget will argue for the prosecution.