text:
    STATE OF MONTANA, Plaintiff and Respondent, v. SHERMAN HAWKINS, Defendant and Appellant.
    No. 88-436.
    Submitted on Briefs Aug. 24, 1989.
    Decided Oct. 19, 1989.
    781 P.2d 259.

      Allen Beck, Billings, for defendant and appellant.
    Marc Racicot, Atty. Gen., Robert F.W. Smith, Asst. Atty. Gen., Helena, Harold Hanser, Co. Atty., Donna Heffington, Deputy Co. Atty., Billings, for plaintiff and respondent.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Following trial in the Thirteenth Judicial District, Yellowstone County, the jury found Sherman Hawkins guilty of felony assault. The court designated Hawkins a persistent felony offender and a dangerous offender. Hawkins appeals all three decisions. We affirm.

ISSUES

The appellant raises the following issues:

1. Whether the trial court had jurisdiction to designate the defendant a persistent felony offender.

2. Whether the trial court properly designated the defendant a dangerous offender.

3. Whether res judicata and double jeopardy should have precluded the defendant’s second trial.

4. Whether the former prosecution should have precluded the defendant’s second trial.

5. Whether the trial court should have suppressed the fruits of the parole officer’s search of the defendant’s vehicle.

FACTS

On February 5, 1987, LaVon Bretz called the Billings Police Department to report that Sherman Hawkins had threatened to kill Bretz, Hawkins’ ex-wife Francis Kunz, and himself. Responding officers learned from the appellant’s parole officer that Hawkins was on a work release furlough from a first degree murder conviction, that he might be armed and dangerous, and that he was to be arrested if he was carrying any weapons. While patrolling the area of the Kunz home, Deputy Sheriff Dostal spotted Hawkins’ pickup truck heading in the direction of the Kunz home and began following. Hawkins accelerated to between 80 and 85 miles per hour and the officer concluded that Hawkins was either intoxicated or trying to elude him.

When Hawkins stopped in the Kunz driveway, the police conducted a felony stop. A pat-down search produced a small pen knife and a set of brass knuckles. The officers arrested Hawkins for carrying a concealed weapon and for parole violation. Hawkins denied the officers permission to search his vehicle, but while removing the keys from the truck, one of the officers spotted the handle of a pistol on the floor. Hawkins’ parole officer conducted a warrantless search of the pickup and seized a .38 caliber pistol, five cans of beer, and 1.2 pounds of marijuana.

During processing at the Yellowstone County Sheriff’s Office, Hawkins allegedly attacked and attempted to strangle attending Officer Dostal. Hawkins escaped, but was later captured in Arizona. He returned to Montana to face charges of felony assault, carrying a concealed weapon, possession of dangerous drugs, and felony escape.

The jury found Hawkins guilty of felony drug possession and misdemeanor escape, but returned a hung verdict on the assault and weapon charges. The court designated Hawkins a persistent felony offender. Following retrial on the felony assault charge, the jury found Hawkins guilty. The court added another persistent felony offender designation and also designated Hawkins a dangerous offender.

I. Persistent Felony Offender Status

The appellant argues that the District Court did not gain jurisdiction to designate him a persistent felony offender because the prosecution failed to provide timely notice. The appellant correctly points out that written notice must be given before the case is called for trial, § 46-18-503(1), MCA, and that the requirement is jurisdictional, State v. Madera (1983), 206 Mont. 140, 155, 670 P.2d 552, 560. The appellant fails to note that a second, procedural notice is also required prior to sentencing. § 46-18-503(3), MCA; Madera, 206 Mont. at 155, 670 P.2d at 560.

The record in this case clearly shows that the State gave appropriate notice in both prosecutions. In the first case, jurisdictional notice was given on September 3, 1987, and trial began on April 12, 1988. The prosecution gave the second, procedural notice on May 11, 1988, and sentencing took place on May 24, 1988. In the second case, jurisdictional notice was given on September 1, 1988, and trial began on October 11, 1988. The prosecution gave the second, procedural notice on October 17, 1988, and sentencing took place on October 25, 1988.

The appellant raises a second objection. Without elaborating on his argument or citing any authority, the appellant asserts that the District Court erred in its second designation of Hawkins as a persistent felony offender because both underlying convictions arose from a single transaction.

The fact that both crimes arose out of the same transaction does not in itself bar application of the persistent felony offender designation. A persistent felony offender is defined as,

“an offender who has previously been convicted of a felony and who is presently being sentenced for a second felony committed on a different occasion than the first.”

§ 46-18-501, MCA.

The statute requires that the offender has committed at least two felonies. The test of whether more than one crime results from the same transaction is whether the elements of each charged offense require proof of a fact which the others do not. State v. Gray (1983), 207 Mont. 261, 269, 673 P.2d 1262, 1267. The first jury found Hawk'ins guilty of felony drug possession which requires the prosecution to prove that the defendant knowingly, purposely, or negligently possessed more than sixty grams of marijuana. § 45-9-102(2), (4), MCA; § 45-2-103(1), MCA. The second jury found Hawkins guilty of felony assault which required proof that he knowingly and purposely caused bodily injury to a peace officer who was responsible for his custody. § 45-5-202(2)(c), MCA. Clearly, these are separate crimes.

The statute also requires that the offender must have committed the felonies on different occasions. We have not yet considered what constitutes different occasions for the purposes of the persistent felony offender statute. In interpreting its version of the statute, the Arizona Supreme Court stated,

“We know of no all-encompassing test to determine whether different crimes fall within the ‘same occasion’ limitation of the statute. Any analysis of the question must have reference to the time, place, number of victims, and distinct nature of the defendant’s acts. In general, however, when different crimes, even though unrelated in nature, are committed at the same place, on the same victim or group of victims, and at the same time or as part of a continuous series of criminal acts, they should be considered as having been committed on the ‘same occasion’ for purposes of sentence enhancement.”

State v. Henry (1987), 152 Ariz. 608, 734 P.2d 93, 97. (Citation omitted.)

We apply a similar analysis here and hold that Hawkins’ two felony crimes occurred on different occasions. The drug possession charge is a crime against the state which occurred prior to Hawkins’ arrest in the Kunz driveway. The assault against Deputy Dostal occurred some hours later in the Yellowstone County Courthouse. Though the assault during escape was a result of Hawkins’ drug-related arrest, the crimes are sufficiently disparate in time, place, and victim that they cannot be said to have occurred on the same occasion. The second persistent felony offender designation was appropriate.

II. Dangerous Offender Status

The appellant argues that the record does not contain substantial credible evidence to support dangerous offender status. He correctly points out that the trial court must articulate reasons based on substantial credible evidence and may not simply recite the statute. See In the Matter of McFadden (1980), 185 Mont. 220, 222, 605 P.2d 599, 600.

The District Court has amply satisfied the McFadden requirements. Among other factors, the court considered the presentence report, the appellant’s prior criminal history, the inability of the appellant to live in the community for more than three years without being convicted of felony drug possession and felony assault, and the violence of the crime and danger to the victim.

III. Res Judicata and Double Jeopardy

Again with little elaboration and no authority, the appellant asserts that in convicting him of misdemeanor escape and not of felony assault, the first jury determined that Hawkins did not assault Officer Dostal and, therefore, he cannot be tried again on the same factual issue.

The question of double jeopardy is easily settled; it does not arise when the state charges the defendant with felony escape and felony assault. State v. Thornton (1985), 218 Mont. 317, 325, 708 P.2d 273, 278-79.

The issue of res judicata is more complex. In Sealfon v. United States, the United States Supreme Court held that res judicata may be a defense to a criminal prosecution. The doctrine “operates to conclude those matters in issue which the [previous] verdict determined though the offenses be different.” Sealfon v. United States (1948), 332 U.S. 575, 578, 68 S.Ct. 237, 239, 92 L.Ed. 180, 184. Similarly, this Court stated in a criminal case, that “a final judgment on the merits by a court of competent jurisdiction is conclusive as to . . . issues thereby litigated . . .” Coleman v. State (Mont. 1981), [_Mont__,] 38 St.Rep. 1352, 1357-58, 633 P.2d 624, 629.

The pivotal question in the case sub judice is what issues the jury decided in the first trial. If the jury decided that Hawkins did not assault Officer Dostal, res judicata would bar re-litigation of that issue. Faced with a similar problem in Sealfon, the United States Supreme Court looked to the facts necessarily adduced at trial and the jury instructions. Sealfon, 332 U.S. at 578-79, 92 L.Ed. at 184, 68 S.Ct. at 239.

The Hawkins court instructed the jury that to find the defendant guilty of felony assault, they would have to conclude that he attempted to strangle Officer Dostal. On the issue of escape, the court instructed the jury to first consider the crime of felony escape, which also required a finding that Hawkins attempted to strangle Officer Dostal. The court further instructed, “In the event you cannot find the defendant guilty of . . . ESCAPE (FELONY) , you must consider the lesser included offense of ESCAPE (MISDEMEANOR) . . . .” The jury returned a verdict of guilty of misdemeanor escape, but hung on the assault charge.

Contrary to appellant’s assertion, it is apparent that the jury did not conclude that Hawkins did not assault Officer Dostal. They explicitly failed to come to any conclusion on that issue by entering no verdict on the assault charge. Since the jury could not decide if Hawkins assaulted Officer Dostal, they could not find him guilty of felony escape, but could, and did, find him guilty of misdemeanor escape. Because the first jury never decided the issue of assault, it was a proper subject of the second trial and not blocked by the doctrine of res judicata.

IV. Lesser Included Offense

The appellant asserts without explanation that since Hawkins was not convicted of felony escape, he cannot be charged with the lesser included offense of felony assault. We have previously held that felony escape and felony assault are not inclusive, State v. Thornton (1985), 218 Mont. 317, 325, 708 P.2d 273, 278-79, and find no merit in the appellant’s argument.

V. Search and Seizure

The appellant lastly argues that the trial court erred in not suppressing the marijuana evidence found in Hawkins’ truck because the evidence was the result of a warrantless search by parole officers. The appellant apparently contends that evidence discovered during a parole officer’s search of a parolee should be restricted to parole revocation proceedings. We disagree.

The search in this case is controlled by our holding in State v. Burke. [235 Mont. 165] In that case we followed the United States Supreme Court in holding that a probation officer may search a probationer’s vehicle without a warrant as long as the officer has reasonable cause. Burke (Mont. 1988), [235 Mont. 165,] 766 P.2d 254, 256, 45 St.Rep. 2278, 2280.

Reasonable cause existed in the present case. While on furlough from a first degree murder sentence, Hawkins threatened to kill LaVon Bretz and Francis Kunz. Arresting officers found brass knuckles in his pocket and his erratic driving indicated that Hawkins may have been intoxicated. The parole officer was thereby given reasonable cause to search Hawkins’ vehicle for alcohol and weapons. The marijuana was a fortuitous discovery pursuant to a lawful search.

The conduct of the police officers is also controlled by our holding in Burke. In Burke, we noted that probation officers are not always available in Montana, and we encouraged police and probation officers to cooperate and communicate in the effective administration of the probation system. Burke, 766 P.2d at 257, 45 St.Rep. at 2283. Parole officers were available in this case, and the cooperation and communication were appropriate. Hawkins’ parole officer was notified early in the incident and the information he provided insured an uneventful arrest. The police waited for the parole officer to make the decision to conduct a search of the vehicle. The parole officer determined that he had reasonable cause and that no warrant was necessary.

We take note of the apparent contradiction between Hawkins’ adamant refusal to allow the police to search his vehicle and the officers’ testimony that Hawkins paradoxically gave them permission to secure the pickup truck by removing the keys. Hawkins testified that he never authorized removal of the keys. The District Court, as the finder of fact in the suppression hearing, chose to believe the police officers rather than Hawkins. Without more evidence, we hold that the court did not abuse its discretion.

The appellant argues that Hawkins’ parole officer acted as a mere “pawn” of the police in searching Hawkins’ vehicle. In Burke we stated that probationers should not be afforded a fortuitous opportunity to escape punishment for probation violations simply because probation officers were not present during observation or arrest. Burke, 766 P.2d at 257, 45 St.Rep. at 2282-83. We will also not give parolees carte blanche to avoid punishment for criminal acts simply because a police arrest led to a lawful search by parole officers.

We find the appellant’s assertions without merit.

Affirmed.

JUSTICES HARRISON, HUNT, McDONOUGH and WEBER concur.


source: Caselaw Access Project

author: JUSTICE WEBER

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. SHAWN DREW CLAWSON, Defendant and Appellant.
    No. 89-108.
    Submitted on Briefs Aug. 24, 1989.
    Decided Oct. 19, 1989.
    781 P.2d 267.

      Edmund F. Sheehy, Jr., Cannon & Sheehy, Helena, for defendant and appellant.
    Marc Racicot, Atty. Gen., Paul D. Johnson, Asst. Atty. Gen., Mike McGrath, County Atty., Carolyn A. Clemens, Deputy County Atty., Helena, for plaintiff and respondent.
   JUSTICE WEBER

delivered the Opinion of the Court.

Defendant, Shawn Drew Clawson, was charged with aggravated kidnapping, aggravated assault, sexual intercourse without consent, and attempted deliberate homicide in the District Court for the First Judicial District, Lewis and Clark County. The aggravated assault charge was dismissed. The jury found defendant guilty as charged of the offenses of aggravated kidnapping, sexual intercourse without consent, and attempted deliberate homicide. Defendant was sentenced to 100 years for aggravated kidnapping, 100 years for attempted deliberate homicide, 40 years for sexual intercourse without consent, 100 years as a persistent felony offender, and 10 years for the use of a weapon, to run consecutively, making a total of 350 years. He was also declared ineligible for parole. Defendant appeals. We affirm.

Defendant presents three issues on appeal:

1. Did the District Court err in ruling that sexual intercourse without consent is not a lesser included offense of aggravated kidnapping, and therefore not dismissing the charge of aggravated kidnapping?

2. Did the District Court err in finding that the offense of attempted deliberate homicide was not impliedly repealed by the newly enacted offense of criminal endangerment?

3. Did the District Court err in denying defendant’s motion for mistrial when the prosecution addressed punishment in its rebuttal closing argument?

The victim, L.B. lived in Helena, Montana. Near midnight, on June 10, 1988, L.B. received a phone call from a man stating that he had borrowed some car parts and tools from her husband and wanted to return them that night. L.B. felt uneasy because of the call and called her husband who was working in the state of Idaho. He did not recall loaning tools to anyone. Her husband called later to make sure she was all right. He also asked a male friend, Mr. E., in Helena to check on L.B.

Mr. E. called L.B. shortly after the call from her husband. While he was talking to her, the defendant burst into the house through a bedroom window. L.B. testified that she recognized defendant as the man who had come to her home a week earlier requesting a tour of it because it was for sale, and also as the man who made the phone call earlier that night. As he approached her, she screamed “Oh no, Oh no.” Defendant put a knife to L.B.’s throat and then hung up the phone. He forced her to leave clad only in a nightshirt and without slippers, and took her to his car several blocks away. She made several unsuccessful escape attempts.

Because there are no significant factual issues raised by the defendant we will not detail the very extensive criminal conduct of the defendant which extended over a period of many hours, starting after 1:00 a.m. Beginning in a vacant bus near her home and then continuing in various locations around the city, defendant repeatedly committed acts of sexual intercourse without consent on L.B., and in addition, by force required her to take part in various deviate sexual acts. Defendant repeatedly tortured L.B., choked her a number of times, burned her body with cigarettes and beat her physically with a club. Finally, after driving L.B. several miles out of town, defendant slammed her head into a rock and stabbed her 15 times in her chest and abdomen. We emphasize that the record is devoid of any evidence, or even suggestion of evidence, which demonstrates consent or participation in any of the conduct by L.B. The bestiality of the conduct on the part of defendant is overwhelmingly present in the record. We are unable to comprehend the lack of consideration for another human being which was demonstrated by defendant, and which is apparent even from his own testimony. In the event that defendant finds it appropriate to seek further review, we invite any federal court to review the extensive transcript in order to gain an adequate understanding of the facts of this case.

Because of his fear of being caught, defendant concocted a story for L.B. to tell Mr. E. in order to explain why she hung up on him. Defendant forced L.B. to call Mr. E. and to relay the story about friends with whom she left to go drinking in Butte. L.B. attempted to tip off Mr. E. by asking questions about his wife although he was unmarried. Mr. E. had already called the police and sent them to L.B.’s home. Defendant also forced L.B. to call the police with the same phony story. As dawn approached, the defendant became nervous and drove L.B. out of Helena into the foothills near Canyon Ferry. He stopped when L.B. said that she had to go to the bathroom.

L.B. testified that she next awoke in the bottom of a ravine, clad in only her nightshirt, and bleeding from her wounds. She testified that she did not move at all that day because she was not strong enough to get up. At dusk she walked for about half an hour, and during that night alternated between walking and sleeping. Cactus spines punctured her bare feet. In the morning she slowly made her way out of the ravine to a road. Two people in a pickup truck drove past and saw her sitting on the side of the road with blood on her head. They rushed her to the hospital, where it was discovered she had been stabbed 15 times in her chest and abdomen. The hospital physician who treated L.B. testified that she had several “potentially fatal stab wounds,” had lost a “minimum of 75% of her blood volume,” and that her head wounds would have been potentially fatal had they not “occurred on a particularly hard portion of the skull.” He testified that L.B. probably would not have survived more than a few hours, had she not been rescued.

I

Did the District Court err in ruling that sexual intercourse without consent is not a lesser included offense of aggravated kidnapping, and therefore not dismissing the charge of aggravated kidnapping?

Defendant contends that pursuant to § 46-11-502, MCA, sexual intercourse without consent is a lesser included offense of aggravated kidnapping and that he cannot be convicted of both without resulting in double jeopardy. The basis of his claim is that the “without consent” element of sexual intercourse without consent is established by the kidnapping because the taking of someone against her will is without consent. At the close of the State’s case-in-chief, defendant moved to dismiss the charge of aggravated kidnapping for that reason.

The State argues that in determining if one offense includes another, the statutory elements of each offense must be analyzed to determine if each offense contains an element different from the other. The State refers to a number of Montana cases and in particular relies upon State v. Thornton (1985), 218 Mont. 317, 708 P.2d 273. Defendant agrees that Thornton sets forth the appropriate standard. In Thornton the standard is discussed at some length as follows:

“Defendant’s argument relies upon the holding found in Blockburger v. United States (1932), 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309, which states:
“ ‘The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not.’
“The first sentence of § 46-11-502, MCA, states: ‘When the same transaction may establish the commission of more than one offense, a person charged with such conduct may be prosecuted for each such offense.’ The statute goes on to enumerate some exceptions to this statement. Defendant, however, has not indicated which exception he relies on, but his argument appears to center around exception (1). This exception states: ‘[Defendant] may not, however, be convicted of more than one offense if . . . one offense is included in the other.’
“In a series of recent cases this Court has clarified the application of the Blockburger rule and § 46-11-502. To determine if one offense is includable within another, the analysis looks to the statutory elements, not the particular factual situation. (Citations omitted.) If each offense contains an element different than the other there is no inclusion, even though there may be a substantial overlap in proof. (Citations omitted.)”

The State maintains that the statutory definition of sexual intercourse without consent does not require the purpose to facilitate commission of a felony as defined in this case for aggravated kidnapping. In a similar manner, the statutory definition of aggravated kidnapping as here charged, does not require sexual intercourse without consent, but only the purpose to facilitate commission of a felony. We agree.

Under §§ 45-5-303(1)(a) and (c), MCA, the offense of aggravated kidnapping is committed when 1) a person knowingly or purposely, 2) without lawful authority, 3) restrains another person 4) by the use of threats or physical force, 5) with the purpose to facilitate commission of any felony. Section 45-5-503(1), MCA, provides that a person commits the offense of sexual intercourse without consent when he 1) knowingly, 2) has sexual intercourse, 3) without consent with a person of the opposite sex. We look to the statutes to determine if each offense requires proof of a fact which the other does not. State v. Madera (1983), 206 Mont. 140, 670 P.2d 552.

To prove aggravated kidnapping the State must prove the kidnapping was committed with the purpose to facilitate commission of any felony. The State need not prove the actual commission of a felony. The State need only prove that there was the purpose to facilitate or aid in the commission of a felony. As appears from § 45-5-503(1), MCA, that element is not required to prove sexual intercourse without consent.

In order to prove sexual intercourse without consent, the State must prove an act of sexual intercourse. That element is not required under the aggravated kidnapping statute, §§ 45-5-303(l)(a) and (c), MCA.

Our comparison of the statutory elements of both crimes makes it clear that under the Thornton test, each offense contains an element different than the other. As a result, it is clear that one offense is not included in the other as prohibited under § 46-11-502(1), MCA. That disposes of the principal argument on the part of the defendant.

In addition, on appeal, defendant attempted to argue the application of § 46-11-503(4), MCA, which provides that a person may not be convicted of more than one offense if the offenses differ only in that one is defined to prohibit a designated kind of conduct generally and the other prohibits a specific instance of such conduct. As pointed out by the State, the defendant did not object on this theory at the trial court level. It is true that the district court may not be put in error for a ruling that it has not made. Nonetheless we will briefly discuss this theory in order to eliminate the contention of the defendant. Clearly sexual intercourse without consent is not a specific instance of aggravated kidnapping. As a result there is a failure to meet the definitional provision of § 46-11-503, MCA.

We therefore conclude that under § 46-11-502, MCA, and Thornton, sexual intercourse without consent is not a lesser included offense of aggravated kidnapping. We affirm the holding of the District Court in so ruling.

II

Did the District Court err in finding that the offense of attempted deliberate homicide was not impliedly repealed by the newly enacted offense of criminal endangerment?

The offense of attempt is defined in § 45-4-103(1), MCA, as follows:

“A person commits the offense of attempt when, with the purpose to commit a specific offense, he does any act toward the commission of such offense.”

A person commits the offense of deliberate homicide as defined in § 45-5-102(1), MCA, if:

“(a) he purposely or knowingly causes the death of another human being; or
“(b) he attempts to commit, commits, or is legally accountable for the attempt or commission of robbery, sexual intercourse without consent, arson, burglary, kidnapping, aggravated kidnapping, ... or any other forcible felony and in the course of the forcible felony or flight thereafter, he or any person legally accountable for the crime causes the death of another human being.”

Criminal endangerment is defined in § 45-5-207(1), MCA:

“(1) A person who knowingly engages in conduct that creates a substantial risk of death or serious bodily injury to another commits the offense of criminal endangerment.”

Defendant argues that the intent of the 1987 Montana Legislature in enacting the criminal endangerment statute § 45-5-207, MCA, was to impliedly repeal the offense of attempted deliberate homicide. This would reduce the penalty imposed on defendant from a possible maximum penalty of life imprisonment to a maximum penalty of ten years. He contends that proof of criminal endangerment would show attempted deliberate homicide or vice versa, so it would not make sense to say that both offenses still exist under Montana law.

The State contends that any intention of the legislature to repeal an offense must be clear and manifest, which is not present in this case. It maintains that the key is whether each statute requires proof of an additional fact which the other does not require. It argues that because criminal endangerment does not require a purposeful act to cause the death of a human being, as does attempted deliberate homicide, defendant’s argument fails.

The legislative history does not indicate that the creation of the offense of criminal endangerment impliedly repealed the offense of attempted deliberate homicide. The offense entails a wide variety of offenses, resulting from gross negligence and reckless behavior. Judiciary Committee Notes, February 5, 1987, page 4. The legislature considered endangerment statutes of Colorado, Washington, Oregon, Alaska and Arizona in drafting the criminal endangerment statute. Those states all consider endangerment as an assault-type offense and have classified it as a misdemeanor, gross misdemeanor, and a felony.

One of the cases analyzed by the legislature was a Washington Supreme Court decision. In that case, the defendant fired a .22 rifle at passing cars, parked cars and apartment buildings as a Halloween prank. He was convicted of assault and reckless endangerment. The reckless endangerment charge was based on the firing of the gun at an inhabited apartment building where one bullet went through a window and into a wall. The Court ruled that this did not constitute double jeopardy, holding that “definite punishment” is not the same as “double punishment.” State v. Turner (1981), 29 Wash.App. 282, 627 P.2d 1324.

Washington law defines “reckless endangerment” as follows:

“(1) A person is guilty of reckless endangerment when he recklessly engages in conduct which creates a substantial risk of death or serious physical injury to another person.
“(2) Reckless endangerment is a gross misdemeanor.”

Wash. Rev. Code § 9A.36.050 (1975). The only significant difference between the Washington statute and the Montana statute is the use of the term “reckless” in the Washington statute rather than “knowingly” as defined in Montana. Either way it is clear that the statute is created to punish reckless or negligent behavior which has the inherent potential Of resulting in death or serious bodily injury to another person. Thus, criminal endangerment is clearly distinguishable from attempted deliberate homicide because the purpose of the behavior itself is different even if the result of the behavior may be the same. We affirm the District Court’s conclusion that the offense of attempted deliberate homicide was not impliedly repealed by the newly enacted offense of criminal endangerment.

Ill

Did the District Court err in denying defendant’s motion for mistrial when the prosecution addressed punishment in its rebuttal closing argument?

At trial, defendant admitted to committing aggravated kidnapping and sexual intercourse without consent. The jury, then, only needed to decide whether defendant committed attempted deliberate homicide or either mitigated attempted deliberate homicide or criminal endangerment. As already discussed, defendant adamantly argued that he did not intend to kill L.B. so he could only be charged with criminal endangerment. During closing arguments, the State made reference to the differences in punishment in these offenses. This was the basis of defendant’s motion. The pertinent part of the disputed closing argument follows:

State’s Closing Argument:

“What about the defendant? Do you believe him? Is he a credible witness? Does he have a motive to lie? Sure he does. I think he summed it up in his statement that he made to [L.B.] in the car when Mr. Sheehy said well what did you talk about? I don’t know why I am doing this. I just got out of jail for doing this. It happens every time I see an attractive woman. That is what he said. And that is why he is lying in this case. He does not want to go back to jail. So he told you a' bare outline of what happened that night. He admitted to parts of it. He admitted to parts that there was physical evidence to substantiate, things that he couldn’t dispute because the evidence was blatantly there in front of him. And then he minimized the rest of it . . .”

Defendant’s Closing Argument:

“Now — I know Mr. Clemens says Shawn Drew Clawson has got a reason to lie. Doesn’t want to go back to jail when he tells you specifically that he didn’t have the intent to kill her. [H]e is going back to jail. He is going back to jail; has been in jail since the 15th of June, 14th of June. He got up here and admitted his guilt, admitted that he had sexual intercourse without consent, admitted that he had aggravated kidnapping. Why? If he intended to kill her wouldn’t he say I intended to kill her? What has he got to gain from that? It has got nothing to do with not going back to jail . . .”

State’s Rebuttal:

“There is a big difference between criminal endangerment and attempted deliberate homicide. Mr. Clawson is worried about how long he is going to be in jail. How many years he will be there and whether he will ever be out again. That is what he is worried about. That is why his attorney wants you to find him guilty of criminal endangerment and not attempted deliberate homicide.”

The State maintains that this was not prejudicial in light of the cautionary instructions given to the jury immediately after denying the motion:

“You are not to be concerned with the penalty provided by law for the offenses charged or to speculate on what it might be or should be in this case. Imposing sentence within the bounds set by the legislature is the exclusive business of the Court and has nothing whatever to do with your verdict. Your task is to consider the facts and render your verdict upon the facts . . .
“You should take the law in this case from the instructions alone. You should not give any weight to statements of counsel or of anyone else as to what the law is, nor should you allow yourselves to decide this case contrary to these instructions, even though you might believe that the law ought to be otherwise.”

The State further points out the District Court’s ruling on the motion:

“I have no objection to telling the jury that in accordance with the instructions that they were given that punishment is not their job, it is my job. And they are not to consider it. But I do not think that a mistrial should be granted. I don’t think the jury was in any way prejudiced by it and as I did remark at one time the Court’s instruction refers to mitigated attempted, mitigated deliberate homicide and criminal endangerment as being lesser included offenses. From that almost any person of average intelligence would surmise that the punishment for a lesser included offense is less than it is for the main crime. I just think that is — that is implied in the Court’s instructions. So it is just one of those things that I think everybody understood.”

The State contends that even if the remarks in closing were improper, any error is presumed to be corrected if the District Court gave the jury a proper cautionary instruction.

There must be a manifest necessity to declare a mistrial and the defendant must have been deprived of a fair and impartial trial. State v. Brush (1987), 228 Mont. 247, 741 P.2d 1333, 1336. 44 St.Rep. 1495, 1499.

“The test for declaring a mistrial was stated by the United States Supreme Court in United States v. Perez (1824), 22 U.S. (9 Wheat.) 579, 580 [6 L.Ed. 165]: ‘[T]he law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject . . . [T]he power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; . . .” State v. Close (1981), [191 Mont. 229,] 623 P.2d 940, 945-946, 38 St.Rep. 177, 183.”

State v. Doney, (Mont. 1981), [_ Mont. _,] 636 P.2d 1377, 1383, 38 St.Rep. 1707, 1714.

The references to the differences in punishment were made to explain why the defendant had a motive to lie. We agree with the District Court’s conclusion that there was no prejudice to the defendant by the references to punishment. Furthermore, the evidence is replete with detailed testimony of L.B. which overwhelmingly established the offense of attempted deliberate homicide. The District Court promptly gave the jury a cautionary instruction admonishing them to disregard the state’s reference to punishment. We conclude that the District Court was correct in denying the defendant’s motion for mistrial on this theory.

We also note that the defendant argued that the action of the State in calling the defendant a “liar” was prejudicial. The State’s reference to defendant as a “liar” was nothing more than an opinion based on the State’s analysis of evidence, and did not constitute an expression of the State’s personal opinion of guilt. See State v. Armstrong (1980), 189 Mont. 407, 616 P.2d 341. We conclude there was no basis for mistrial as a result of this action by the State.

We affirm the District Court.

CHIEF JUSTICE and JUSTICES HARRISON, McDONOUGH, HUNT and GULBRANDSON concur.

JUSTICE SHEEHY did not participate in this matter.


author: CHIEF JUSTICE TURNAGE

text:
    In re the MARRIAGE OF ARNOLD DEICHL, Petitioner and Appellant, and MARY ANN DEICHL, Respondent and Respondent.
    No. 89-227.
    Submitted on Briefs Sept. 7, 1989.
    Decided Oct. 19, 1989.
    781 P.2d 254.

      Chris J. Nelson, Billings, for petitioner and appellant.
    Larry Cole, Billings, for respondent and respondent.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Appellant Arnold Deichl appeals several decisions made by the District Court of the Thirteenth Judicial District, Yellowstone County, in granting Deichl’s petition for dissolution. We affirm.

Deichl asks whether the District Court erred,

1. In refusing to sanction the wife for failure to appear for a deposition,

2. In failing to consider the husband’s ability to pay the wife lifetime maintenance of $450 per month, and

3. In ordering the husband to pay taxes resulting from the court-ordered, premature liquidation of Individual Retirement Accounts.

The District Court in this case found that during the marriage the husband worked as an executive for several farm equipment companies and at the time of the dissolution, had a take-home pay of $1,566.26 per month. The court found that the wife worked as a homemaker raising the couple’s three children. She performed some volunteer work and was occasionally employed in clerical positions. At the time of the dissolution, the wife was forty-seven years old and held a sales and clerical position with a car rental agency providing take-home pay of $530.84 per month. She was receiving medical treatment for arthritis and depression, and had difficulty dealing with stressful situations. Because of the wife’s inability to adequately support herself and the modest value of family property available for distribution, the District Court ordered the husband to pay the wife lifetime maintenance of $450 per month.

Before trial, -the husband twice attempted to depose the wife. The court quashed the first attempt and entered a protective order to guard the wife’s health and well-being. On the second attempt, the court refused to provide a protective order, but the wife failed to appear for the deposition. The court denied the husband’s subsequent motion for sanctions.

In granting the dissolution, the District Court divided the couple’s modest property which included two IRA accounts. The court ordered the liquidation of the accounts to pay outstanding medical bills and equally apportioned the remainder to the parties. The husband was ordered to pay the tax penalties caused by the premature liquidation.

The husband now challenges the District Court’s decisions.

The laws controlling review of the issues in this case are well settled. First, control of discovery is within the trial court’s discretion, and we will reverse its decisions only when they materially affect the substantial rights of the appellant and allow the possibility of a miscarriage of justice. Massaro v. Dunham (1979), 184 Mont. 400, 404-05, 603 P.2d 249, 251-52. Second, a District Court’s award of maintenance will not be disturbed if it is supported by substantial credible evidence and exhibits no clear abuse of discretion. In re Marriage of Cole (Mont. 1988), [234 Mont. 352,] 763 P.2d 39, 41, 45 St.Rep. 1965, 1967. Finally, in the distribution of marital property and obligations, we will reverse the District Court only when it has committed a clear abuse of discretion. In re Marriage of Stewart (Mont. 1988), [232 Mont. 40,] 757 P.2d 765, 767, 45 St.Rep. 850, 852.

In essence, the appellant now asks this Court to reweigh many of the District Court’s factual determinations. This we decline to do. The District Court heard the conflicting evidence, made its determinations, and entered suitable findings of fact and conclusions of law. Those findings and conclusions are supported by substantial credible evidence in the trial record, and we find no abuse of discretion.

Affirmed; appellant to pay the respondent’s costs.

JUSTICES HARRISON, SHEEHY, HUNT, WEBER and Mc-DONOUGH concur.


text:
    DONALD C. MARKS, Relator, v. The FIRST JUDICIAL DISTRICT COURT OF THE STATE OF MONTANA, In and For the COUNTY OF BROADWATER, The Honorable Henry Loble, Presiding, Respondent.
    No. 89-256.
    Submitted on Briefs Aug. 17, 1989.
    Decided Oct. 19, 1989.
    781 P.2d 249.

      Ted J. Doney, Doney & Thorson, Helena, for relator.
    Marc Racicot, Atty. Gen., James Yellowtail, Asst. Atty. Gen., Helena, John T. Flynn, County Atty., Richard Feisthamel, Water Com’r Townsend, for respondent.
   JUSTICE WEBER

delivered the Opinion of the Court.

Relator applies for a writ of certiorari to set aside a contempt of court order from the First Judicial District Court of Montana, Broadwater County. We deny the writ.

The issues are:

1. Did the District Court err in finding that defendant was in contempt of court?

2. Did the District Court err in denying defendant’s motion for a continuance?

3. Did the District Court err in denying defendant’s motion for substitution of judge?

On October 7, 1988, Judge Loble, sitting as water court judge in place of Judge Lessley, held a show cause hearing, ordering Mr. Marks to show cause why he should not be held in contempt for failing to obey the orders and directives of the Water Commissioner. This hearing was scheduled based upon an affidavit by Mr. Feisthamel, the Water Commissioner for Confederate Creek, Broadwater County, Montana. In substance, this affidavit stated that on September 23, 1988, the Water Commissioner turned off water at Mr. Marks’ diversion point, but that Mr. Marks turned the water back on without authority on September 25, 1988. On that same day the Water Commissioner turned the water off a second time, whereupon Mr. Marks totally removed the headgate from the diversion point on September 26, 1988. The Water Commissioner also swore that on September 26 he told Mr. Marks to shut off the water, but that Mr. Marks refused. The affidavit further stated that when told that he was being placed under arrest, Mr. Marks told the Water Commissioner to “get lost” and then entered his residence.

Prior to the hearing, Mr. Marks obtained counsel. On October 3, 1988 counsel for Mr. Marks sent a letter to the court requesting a continuance because he had a prior commitment on October 7. Counsel also requested a substitution of judge. On October 6, Mr. Marks’ counsel received a letter from the court denying these requests. On the day of the hearing, October 7, Mr. Marks appeared before the court without counsel. The court found him in contempt of court for failing to obey an order of the Water Commissioner. He was ordered td pay a $250 fine or spend two days in the county jail. From this order Mr. Marks appeals.

I

Did the District Court err in finding that defendant was in contempt of court?

In reviewing a contempt appeal, this Court’s standard of review is whether substantial evidence supports the judgment of contempt. Matter of Graveley (1980), 188 Mont. 546, 555, 614 P.2d 1033, 1039. This Court has also stated:

“On reviewing a contempt citation by writ of certiorari, we are limited to the following considerations: whether the lower court had jurisdiction to issue the order and secondly, whether there is evidence supporting the same.”

State ex rel., Foss v. District Court (1985), 216 Mont. 327, 331, 701 P.2d 342, 345.

This case involves interference with the actions of a water commissioner’s distribution of water and is governed by § 85-5-406, MCA, which states:

“Interference with actions of commissioner. Any person opening or closing a headgate after being set by such commissioner or who in any manner interferes with such commissioner in the discharge of his duties shall be deemed guilty of contempt of court and may be proceeded against for contempt of court as provided in contempt cases.”

Mr. Marks contends that the contempt charge in this case was criminal in nature, triggering a requirement that the court find he acted “knowingly or purposely” when he violated the orders of the Water Commissioner. He contends that the evidence is insufficient to prove that he consciously disregarded any orders.

In Matter of Graveley, we stated that “contempts are neither wholly civil nor altogether criminal,” citing United States v. Montgomery (D.Mont. 1957), 155 F.Supp. 633. Matter of Graveley, 614 P.2d at 1039. Further, the present case involves constructive contempt since the conduct occurred outside the presence of the court. In Matter of Graveley, the Court stated:

“In a constructive contempt, the essence of whether the court’s order has been abused is whether the party accused had knowledge of the order. (Citation omitted.)”

Matter of Graveley, 614 P.2d at 1039.

In Matter of Graveley, two county attorneys were verbally ordered by a district court to transport two defendants to Warm Springs Hospital for mental evaluation. Instead, the attorneys took them to Malta where they had charges pending. On the issue of whether the attorneys had knowledge of the court’s oral order, the district court found it sufficient that the attorneys were present in court when the order was made. See generally, Matter of Graveley.

In the present case, at the hearing on the order to show cause, the Water Commissioner testified that he turned off Mr. Marks’ water on September 23, 1988 because Mr. Marks was not in compliance with regulations to have water at that time. He stated that he did not contact Mr. Marks at that time. However, two days later while moving debris out of the stream, Mr. Feisthamel noticed that Mr. Marks’ headgate was again open. The Water Commissioner then testified that on the 26th of September, the headgate was completely removed. Mr. Feisthamel testified that he went to Mr. Marks and told him he was “in trouble” for opening his own headgate, and then removing it entirely, and that he was not in compliance with the law. Mr. Feisthamel stated that after an argument, he informed Mr. Marks that he had authority to arrest him and he could consider himself under arrest. He stated that Mr. Marks told him to “get lost,” and entered his residence. This testimony by Mr. Feisthamel was sufficient to establish that Mr. Marks had knowledge of the Water Commissioner’s directives and consciously disregarded them. The testimony further established that Mr. Marks resisted arrest and acted contemptuously toward the Water Commissioner.

In its order finding Mr. Marks guilty of contempt the court reviewed the history of Mr. Marks’ disputes with water commissioners and water courts. The court stated:

“Water user Marks has been a participant in many of the controversies brought before the undersigned judge since he assumed jurisdiction in this case many years ago. Sometimes Marks has been represented by counsel and sometimes he has appeared pro se. In 1983 Marks sought the removal of water commissioner Hensley and objected to paying his charges. In 1984 he contested Hensley’s reappointment and proposed another person for commissioner. In 1985 he again contested the reappointment of Hensley. In 1986 he filed a complaint against Hensley. In 1987 a hearing was held concerning Marks’ failure to pay water commissioner fees ... In 1988 Marks has been in an almost constant and defiant dispute with water commissioner Feisthamel.
“On June 7,1988, Marks, through his counsel, recognized that the undersigned was presiding judge in this case by filing a Section 85-5-301, MCA complaint before him and at the same time procuring an order setting the complaint down for hearing. The hearing was held on June 10, 1988, and Marks appeared and participated therein with counsel Doney. In addition, Marks, acting pro se, filed a statement which contended that the water commissioner owed him $632.32 for moving a beaver dam. The Court subsequently and after hearing found in its order of July 15, 1988, that Marks’ purpose in filing this statement was “to harass and embarrass an officer of this Court, i.e., the water commissioner, Richard Feisthamel.” Marks was directed to pay water commissioner fees in the amount of $149.68, and if he failed to do so the commissioner was directed not to deliver any water to Marks.”

These extensive extensive findings show Mr. Marks’ continuing refusal to abide by the water commissioners’ directives, and demonstrates Mr. Marks’ prior knowledge of the procedures involved with water commissioners and water courts. In view of this history we conclude that there is no basis in fact for Mr. Marks’ contention that the court failed to find he acted “knowingly and purposely.”

We conclude that there was substantial evidence from which the lower court could find that Mr. Marks had knowledge of the Water Commissioner’s orders and directives. We affirm the District Court’s determination that Mr. Marks was in contempt of court.

II

Did the District Court err in denying defendant’s motion for a continuance?

On September 27, 1988, the court issued an order to Mr. Marks to appear on October 7,1988, to show cause why he should not be held in contempt of court. On October 3, counsel for Mr. Marks sent a letter notifying the court that his schedule would prevent him from appearing at the hearing, and requesting a continuance. The day before the hearing Mr. Marks’ counsel received notice from the court denying this request. Mr. Marks appeared at the hearing without counsel, and did not present any evidence on his own behalf.

Mr. Marks contends that the present charge is criminal in nature, and that he had a constitutional right to counsel which he was denied. As previously stated, a contempt proceeding may be quasi-criminal in nature. Additionally, since the present case involves constructive, rather than direct contempt, some due process is required. This was explained in Lilienthal v. District Court, Etc. (1982), 200 Mont. 236, 242, 650 P.2d 779, 782, as follows:

“Unless the act constituting contempt occurs in open court where immediate punishment is necessary to prevent demoralization of the court’s authority, due process requires:
“ ‘. . . that one charged with contempt of court be advised of the charges against him, have a reasonable opportunity to meet them by way of defense or explanation, have the right to be represented by counsel, and have a chance to testify and call other witnesses in his behalf, either by way of defense or explanation.’ In Re Green (1962), 359 [369] U.S. 689, 691-92, 82 S.Ct. 1114, 1116, 8 L.Ed.2d 198, 200. (Citation omitted.)”

The right to counsel however, has generally been held to mean that one charged with contempt of court is entitled to a “reasonable opportunity to employ counsel in contempt proceedings.” See, Annot. 52 A.L.R.3d 1002, 1005, § 2(a).

In arguing that he was denied counsel, Mr. Marks relies on Lilienthal. In that case the defendant received notice on Thursday, April 2, to show cause at 10:00 a.m. Monday, April 6. Mr. Lilienthal appeared at the hearing without counsel and informed the court that he had been unable to reach his attorney on the previous Friday. The court held the hearing, nevertheless. On appeal, this Court determined that Mr. Lilienthal only had one working day on which to obtain counsel, which was not reasonable opportunity.

In the present case Mr. Marks had over a week to obtain counsel. He received notice of the charge on September 29, 1988, and the hearing was not held until October 7, 1988. Five' days was held to be adequate opportunity to obtain counsel for contempt proceedings in Ungar v. Sarafite (1964), 376 U.S. 575, 590, 84 S.Ct. 841, 850, 11 L.Ed.2d 921, 931. See also Nilva v. United States (1957), 352 U.S. 385, 395, 77 S.Ct. 431, 437, 1 L.Ed.2d 415, 423 (four days notice sufficient). We conclude that Mr. Marks had reasonable opportunity to secure counsel.

We also conclude that the court properly denied the continuance. The District Court has broad discretion in whether to grant a continuance. In re Marriage of Robbins (1985), 219 Mont. 130, 711 P.2d 1347, (affirming trial court’s denial of a continuance in a proceeding involving contempt charges); Sloan v. State (Mont. 1989), [236 Mont. 100,] 768 P.2d 1365, 46 St.Rep. 214, (court has broad discretion to grant continuance in criminal proceedings). In its order denying the continuance the court stated its reasons for denial. Mr. Marks requested that the hearing be continued until November 4th or 18th, approximately a month after the scheduled hearing. The court’s letter of October 5, denying the continuance explained that “[g] ranting the motion for continuance would have left Marks in sole possession and use of all the waters of the creek for over a month at a time when very little remained on the 1988 irrigation season.” We affirm the court’s denial of the motion to continue.

III

Did the District Court err in denying defendant’s motion for substitution of judge?

On October 3, 1988, Mr. Marks filed a motion for substitution of judge. This request was not granted. The show cause hearing was held and judgment was entered against Mr. Marks. The court however, granted a stay of judgment to allow Mr. Marks’ counsel an opportunity to brief the issue of whether the substitution should have been allowed. After considering Mr. Marks’ contentions, the court denied the motion. In its order the court found that Mr. Marks’ motion was not timely, that he was not legally entitled to a substitution of judge, and further noted that where diversion of water is involved, justice could be flouted if one were allowed to delay proceedings by motions of this type.

Mr. Marks contends that the motion should have been granted pursuant to § 3-1-804(1), MCA, which provides for substitution of district judges. This statute, however, does not apply to water judges. See Final Order on Rules for Disqualification and Substitution of Judges (Mont. 1988), [233 Mont. 10,] 45 St.Rep. 1685, 1688. Rather, the disqualification of a water judge is governed by § 3-7-402, MCA, which requires a showing of cause.

Mr. Marks argues, however, that the District Court was not sitting as water judge. He urges that the transfer of jurisdiction from Judge Lessley to Judge Loble was not effective because the requirements of § 3-7-213, MCA, were not met. That statute provides:

“Designation of alternate judge. The water judge may designate a district judge, retired district judge, or another water judge to preside in his absence on his behalf as water judge for the immediate enforcement of an existing decree or the immediate granting of extraordinary relief as may be provided for by law upon an allegation of irreparable harm.”

Mr. Marks contends that unless the water judge was absent and there was a need to grant immediate relief, no valid transfer of jurisdiction was made.

This Court has previously rejected this construction of § 3-7-213, MCA, in Granite Ditch Co. v. Anderson (1983), 204 Mont. 10, 16, 662 P.2d 1312, 1316. In that case we stated:

“The provisions of section 3-7-213, MCA, governing designation of an alternate judge, must be inter-preted in conjunction with the provisions of section 3-7-501. When the two sections are integrate'd we find that the intent of the legislature was to provide that a district judge, sitting as a water judge, could not serve beyond the boundaries of his division absent the showing required by section 3-7-213, MCA.”

We conclude that Judge Loble was properly sitting as water judge, and properly denied Mr. Marks’ request. We further note that the court’s rationale was eminently reasonable given the circumstances. We affirm the District Court’s denial of the motion for substitution of judge.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON, Mc-DONOUGH, HUNT, SHEEHY and GULBRANDSON concur.


author: JUSTICE HARRISON JUSTICE WEBER,

text:
    STATE OF MONTANA, Plaintiff and Appellant, v. HERB SCHAEFER, Defendant and Respondent.
    No. 89-280.
    Submitted on Briefs July 20, 1989.
    Decided Oct. 19, 1989.
    781 P.2d 264.
    Marc Racicot, Atty. Gen., Helena, James C. Nelson, County Atty., Cut Bank, for plaintiff and appellant.
    David F. Stufft, Frisbee, Moore, Stufft & Olson, Cut Bank, for defendant and respondent.
   JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from the District court of the Ninth Judicial District, Glacier County, Montana, wherein the District Court granted the defendant’s motion to dismiss based on lack of jurisdiction because the matter occurred within the exterior boundaries of the Blackfeet Indian Reservation. We reverse.

Defendant/respondent Herb Schaefer, a non-indian, was charged in the Glacier County Justice Court on March 16, 1988, with violations of Montana pawnbroker laws, including the charging of excessive interest rates as a pawnbroker in violation of §§ 31-1-401 and 31-T-407, MCA; and in failing to keep a pawnbroker’s register in violation of §§ 31-1-402 and 31-1-407, MCA.

The three misdemeanor offenses filed against Schaefer in justice court included these two offenses:

“COUNT ONE
“ [T]he above named Defendant committed the offense of CHARGING [Garnet Bear Child] EXCESSIVE INTEREST AS A PAWNBROKER, a MISDEMEANOR, in violation of Section 31-1-401 & 31-1-407 MCA.
“COUNT TWO
“[T]he above named Defendant committed the offense of CHARGING [Margaret Wippert] EXCESSIVE INTEREST AS A PAWNBROKER, a MISDEMEANOR in violation of Sections 31-1-401 & 31-1-407 MCA.

It is of interest to note that the officer who brought these charges in the justice court is an enrolled member of the Blackfeet Indian Tribe, employed by the Bureau of Indian Affairs and was not employed by any State agency or the Glacier County Sheriff’s Department. During the investigation by this officer, there was, at that time, no ordinance under which charges could be brought against Schaefer in the Blackfeet Tribal Court. Consequently, charges were sought in justice court.

Schaefer moved to dismiss the complaint in the justice court on the ground that the State did not have jurisdiction to criminally prosecute him since the alleged offenses occurred within the exterior boundaries of the Blackfeet Indian Reservation and because the persons involved in the transactions with which he was charged were Indians. The justice court rejected Schaefer’s motion to dismiss and, after a bench trial, Schaefer was found guilty of Counts I and II, charging excessive interest rates, misdemeanors, and not guilty of failing to keep a pawnbroker’s register. Schaefer was imposed with a $100 fine each on Counts I and II.

Schaefer appealed to the District Court and renewed his jurisdictional objection by filing on March 9, 1989, a motion to dismiss. After the filing of briefs and oral argument the District Court, on April 11, 1989, granted defendant’s motion to dismiss on the ground that the State lacked jurisdiction.

The State now appeals the District Court’s order granting defendant’s motion to dismiss and raises the following issue on appeal: Does the State of Montana have jurisdiction to criminally prosecute a non-indian defendant for violation of the Montana pawnbroker statutes where the alleged offenses occur within the exterior boundaries of an Indian reservation and involve transactions with Indians?

Garnet Bear Child and Margaret Wippert are enrolled members of the Blackfeet Tribe who live and reside on the Blackfeet Indian Reservation. Schaefer, as previously noted, is a non-Indian and his place of business is located within the exterior boundaries of the Blackfeet Indian Reservation in Browning, Montana.

Concerning the loans which were the basis of Schaefer’s charges, the State contends Schaefer’s conduct, charging Bear Child and Wippert an interest rate of 1228% and 869% per annum, is neither a “small matter” nor “merely an overcharge.” Additionally, the State claims that the federal government, whether or not it has jurisdiction, has neither the time, money, nor staff to supervise, regulate and control reservation pawnshops.

Schaefer argues that by virtue of Blackfeet Tribal Resolution No. 5-89, he is authorized and regulated by the Tribe to do business as a pawnbroker. However, Resolution No. 5-89 was procured from the Tribal Council by Schaefer and his attorneys in preparation for the trial in justice court. The Resolution was adopted by the Blackfeet Tribal Business Council on October 6, 1988, some nine months after Schaefer’s commission of the offenses and two working days before Schaefer’s case was scheduled for trial.

The District Court, in granting Schaefer’s motion to dismiss, held that State v. Greenwalt (1983), 204 Mont. 196, 663 P.2d 1178, is controlling. We do not agree. In Greenwalt, the District Court held that the State lacked jurisdiction to prosecute the defendants for crimes committed against Tribal members on an Indian reservation. Neither Tribal law nor Federal law had provided against such misdemeanor offenses. In the case at bar, unless the State had brought these charges against Schaefer, Bear Child and Wippert, Indian citizens of Montana, would be without the State’s protection for offenses committed on an Indian reservation by a non-Indian.

In two recent cases, State v. Thomas (Mont. 1988), [233 Mont. 451,] 760 P.2d 96, 45 St.Rep. 1627; and Brown v. District Court of the Seventeenth Judicial District (Mont. 1989), [238 Mont. 248,] 777 P.2d 877, 46 St.Rep. 1242, this Court assured the Indian citizens of this State the protection of its laws where neither the Tribal Court nor the Federal government provided such protection. While Brown involved the regulation of the sale of liquor and the licensing of the same on an Indian reservation by Indians, this Court held that the State did have the power to prosecute, in State court, violations of State liquor laws which occur within the borders of an Indian reservation by Indian people.

In Thomas, this Court held that our State courts have jurisdiction over non-Indians charged with violations of the accident reporting law, § 61-7-108, MCA. There, the defendant, a non-Indian, was charged with violating this provision after his vehicle struck a calf owned by an Indian family. We held that even though the accident occurred on a reservation, and the property damaged belonged to an Indian family, the State nonetheless had jurisdiction to prosecute the defendant under the State statute. In Thomas, it was irrelevant to our conclusion that the calf was owned by an Indian family. It is equally irrelevant to the conclusion we reach here that the victims of Schaefer’s violations were members of the Blackfeet Tribe.

Two elements are to be considered here, those elements expressed in this Court’s recent opinion in Thomas on “victimless crimes,” and the rights of Indian citizens of this State to be protected by our laws. Bonnet v. Seekins (1952), 126 Mont. 24, 243 P.2d 317; and State ex rel. Kennerly v. District Court (1970), 154 Mont. 488, 466 P.2d 85. Here, as in Thomas, Schaefer failed to discharge a reporting duty. In Thomas the defendant failed to report a traffic accident. In the case at bar Schaefer failed to obtain a county pawnbroker license. While so doing Schaefer created victims by charging outrageously high interest rates, as well as violating the laws of this State.

This Court, in State ex rel. Kennerly, 154 Mont. at 493, 466 P.2d at 88, noted:

“The jurisdiction problem arising from civil and criminal legal relationships between Indians and non-Indians has been before the courts of this state since statehood. With some 25,000 Indian citizens living on or near one of some seven reservations in the state, it is understandable that the problem is not new however, because of the duality of the Indian’s legal status each case must be considered in light of both state and federal relationships.
“Indians resident in Montana, whether they be full blood or partial blood, allotted or unallotted, domiciled on the reservation or off of it, of one tribe or another, or whatever their status, are citizens of the State of Montana. They are entitled to the protection of our laws and are responsible to our laws . . .”

Montana’s constitution provides to all citizens, Indian and non-Indian alike, equal protection of its laws. The Indian citizens of this State are entitled to the protection of the laws which license and regulate pawnbrokers. Montana has a substantial and important interest in protecting all of its citizens from dishonest pawnbrokers. This purpose is effectuated by requiring accurate and detailed records of transactions in the event authorities need to trace stolen merchandise. The records of transactions also prevent the charging of excessive rates of interest. Regardless of where the pawnshop is located, whether on or off the reservation, the business is open to the entire public. The State has a substantial interest in protecting all citizens against such violations.

The decision of the District Court is reversed and remanded.

CHIEF JUSTICE TURNAGE and JUSTICES SHEEHY, GULBRANDSON and McDONOUGH concur.

JUSTICE WEBER,

dissenting:

The State of Montana does not have jurisdiction over a criminal offense by a non-Indian against an Indian, committed within the exterior boundaries of the reservation. This was the holding in Greenwalt, wherein this Court affirmed the District Court’s dismissal of criminal charges against a non-Indian based on lack of State jurisdiction. In Greenwalt, two non-Indians stole five calves on an Indian reservation. One of these calves belonged to an Indian. The charges against the Greenwalts, relating to the theft of this calf were dismissed on the grounds that the State lacked authority to prosecute. In Greenwalt we affirmed the dismissal, holding that the State did not have jurisdiction.

In Greenwalt, this Court stated:

“In Williams v. United States (1946), 327 U.S. 711, 714, 66 S.Ct. 778, 780, 90 L.Ed. 962, 964, the United States Supreme Court stated:

“ ‘While the laws and courts of the State of Arizona may have jurisdiction over offenses committed on this reservation between persons who are not Indians, the laws and courts of the United States, rather than those of Arizona, have jurisdiction over offenses committed there, as in this case, by one who is not an Indian against one who is an Indian.’
“The 1982 edition of Felix S. Cohen’s Handbook of Federal Indian Law, states at page 353, relying upon Williams:
“ ‘Criminal offenses by non-Indians against Indians or their property are subject to the Indian Country Crimes Act [18 U.S.C. § 13]. The Supreme Court has stated that federal court jurisdiction under this Act is exclusive of state court jurisdiction.’
“See, American Indian Lawyer Training Program, Inc., Justice in Indian Country (1980) 32, and Manual of Indian Criminal Jurisdiction (1978 Supp.) 73a; Getches, Rosenfelt and Wilkinson, Federal Indian Law (1979), 388 (‘c. Crimes by a Non-Indian Against an Indian: State courts cannot have jurisdiction.’)”

Greenwalt, 663 P.2d at 1182-83.

In Greenwalt the remaining charges were later dismissed for insufficient evidence. However, that is irrelevant to the issue of jurisdiction in the present case because those charges did not involve a crime against an Indian. I conclude that the facts of Greenwalt are not distinguishable and the holding should control the present case. We further note that the majority can find no comfort in the language quoted from State ex rel. Kennerly, since that case involved a civil dispute.

Concurrent State and federal jurisdiction may lie where the crime is “victimless.” See, Cohen, Felix S., Handbook of Federal Indian Law, 353, n.4 (1982); State v. Flint (App. 1988), 157 Ariz. 227, 756 P.2d 324. The majority opinion analogizes to Thomas in concluding that the present case involves a victimless crime. In Thomas we determined that the crime was “the failure to discharge a reporting duty, not infliction of damage upon property belonging to an Indian.” We concluded that the crime was therefore victimless for purposes of determining jurisdiction. In the present case, I fail to see how charging interest of 869% to 1228% is a victimless crime. Examples of victimless crimes include possession of illegal drugs, pornography, violation of motorcycle helmet laws, gambling or tax evasion. The Indians doing business at Mr. Schaefer’s pawn shop, who were being charged interest in excess of 800%, certainly must be classed as victims.

The opinion states that the Indian citizens of our State are entitled to the protection of laws regulating pawnbrokers, yet concludes that the crime is victimless. This is inconsistent. While I understand the desire of this Court to provide a means by which this defendant may be punished, I simply cannot agree that this is a victimless crime or that the State has jurisdiction. Our desire to see justice done stems from the fact that there are victims in the present case. I would affirm the District Court.

JUSTICE HUNT concurs in the foregoing dissent.


author: JUSTICE WEBER JUSTICE MCDONOUGH, JUSTICE SHEEHY,

text:
    LINDA M. HART-ANDERSON, Plaintiff and Respondent, v. GERALDINE C. HAUCK and State Farm Insurance Company, Defendants and Appellant.
    No. 89-115.
    Submitted on Briefs July 13, 1989.
    Decided Oct. 23, 1989.
    781 P.2d 1116.

      K.D. Peterson, Peterson, Schofield & Leckie, Billings, for defendant and appellant Hauck.
    Ronald R. Lodders, Crowley, Haughey, Hanson, Toole & Dietrich, L.B. Cozzens, Billings, for plaintiff and respondent.
   JUSTICE WEBER

delivered the Opinion of the Court.

This is an appeal from an order by the Thirteenth Judicial District, Yellowstone County, granting a directed verdict in favor of plaintiff. Defendant appeals. We reverse.

The issues presented for óur review are:

1. Did the District Court err in granting a directed verdict?

2. Did the District Court err in excluding certain hearsay evidence?

3. Did the District Court err in allowing a police officer to testify as to the cause of the accident?

4. Did the District Court err in excluding testimony regarding a traffic citation?

I

The present case involves a traffic accident and issues of negligence. The case was originally tried by jury in May of 1985. It was subsequently appealed to this Court. In Hart-Anderson v. Hauck (1988), [230 Mont. 63,] 748 P.2d 937, 45 St.Rep. 18, we remanded the case for a new trial.

A second jury trial was held on December 10, 1988, and at the conclusion of the evidence the court granted plaintiff’s motion for a directed verdict, concluding that as a matter of law defendant was negligent and plaintiff was not contributorily negligent. Defendant contends that a directed verdict was not appropriate in that the testimony at trial raised issues of fact as to whether plaintiff was contributorily negligent. Defendant contends that this evidence should have been submitted to a jury.

Regarding a directed verdict, this Court has previously stated that, “No case should be withdrawn from the jury if reasonable men may differ as to the conclusions drawn from the evidence.” Mydlarz v. Palmer/Duncan Const. Co. (1984), 209 Mont. 325, 682 P.2d 695. Our review of the record reveals issues of fact upon which reasonable men could differ and we conclude that a directed verdict was not appropriate in this case.

This automobile accident occurred in Billings, Montana on December 6, 1982. The streets that day were very icy. Plaintiff and defendant were both in vehicles traveling east on Broadway, approaching the intersection to Tenth Avenue, with plaintiff ahead of defendant. Broadway approaches Tenth Avenue with a downhill incline. As plaintiff approached Tenth Avenue, she noticed a large delivery truck crossing the intersection in front of her. She also noticed a small Volkswagen on Tenth Avenue behind the truck. As plaintiff approached the intersection she also noticed defendant approaching from her rear. Ultimately defendant’s vehicle hit the rear end of plaintiff’s vehicle, knocking plaintiff’s vehicle across Tenth Avenue, where it collided with the Volkswagen. It came to rest alongside the Volkswagen, facing south. The damage to plaintiff’s car was estimated at $685.

There was testimony presented at trial from five eyewitnesses to the accident. In addition to the testimony of both plaintiff and defendant, there was testimony submitted by deposition from Ms. Heald, the driver of the Volkswagen. The jury also heard testimony from Mr. Poindexter and Mr. Merriweather, both eyewitnesses to the accident. Mr. Merriweather witnessed the accident as he was sitting inside a business establishment at the corner of Broadway and Tenth Avenue. Mr. Poindexter also witnessed the accident from the second floor window of a nearby office building. Some of the testimony from these witnesses differs markedly as to how and where the accident occurred.

Plaintiff testified that as she traveled down Broadway her rear tire bumped the curb approximately 50 feet prior to reaching the intersection. She testified that she straightened her vehicle and was beginning her turn when the impact occurred. The testimony of Mr. Poindexter, Mr. Merriweather and Ms. Heald was substantially in accord with this account. These witnesses testified that the impact occurred on Broadway as plaintiff began to turn onto Tenth Avenue. Mr. Poindexter also testified that he saw plaintiff’s rear tire bump the curb approximately 40 to 50 feet from the corner.

Defendant however, testified that plaintiff’s tire bumped the curb as plaintiff was making her right turn onto Tenth. In substance, defendant stated that she noticed plaintiff having difficulty ahead of her but that she was required to turn right because of the delivery truck on Tenth Avenue. Defendant testified that plaintiff’s vehicle was stopped in front of her as she turned the corner, and that the impact occurred on Tenth Avenue. She alleges that she would have made the right turn without problem had plaintiff not had difficulty negotiating her turn and if plaintiff had not stopped in front of her.

Defendant relies on this Court’s holding in Reed v. Little (1984), 209 Mont. 199, 680 P.2d 937, for the proposition that the defense of contributory negligence is available to her, and should properly have been submitted to the jury. We conclude that Reed is controlling in the present case. In Reed, we discussed negligence per se and its interaction with Montana’s newly enacted statute on contributory negligence, § 27-1-702, MCA. In Reed, we stated:

“We hold that the defense of contributory negligence on plaintiff’s part is available to a defendant who has violated a traffic statute. It is for the fact finder to determine the comparative degree of negligence on the part of plaintiff and defendant.”

Reed, 680 P.2d at 940.

In Reed, defendant rear-ended the vehicle ahead of him. Although the evidence in Reed on behalf of defendant established that plaintiff made an abrupt stop in front of defendant, plaintiff denied the stop. This conflicting testimony was properly submitted to the jury. In Reed, the jury found the lead driver was contributorily negligent even though defendant hit her from behind. In the present case, defendant testified that plaintiff was having difficulty controlling her car and making the right turn. She testified that plaintiff came to a stop in front of her. Although three witnesses corroborated plaintiff’s version, nonetheless, defendant testified in a contrary manner. It is not appropriate for the court to weigh conflicting evidence; rather, that is the function of the trier of fact, in this case, the jury. As in Reed, it was possible for the jurors to find that plaintiff came to an abrupt stop in front of defendant and was contributorily negligent. We conclude that reasonable men might differ in drawing conclusions from the evidence. Thus a directed verdict in favor of plaintiff was not appropriate. We remand this case to the District Court. Additionally, we address the following evidentiary issues for guidance at a subsequent trial.

II

Did the District Court err in excluding certain hearsay evidence?

At trial, counsel for defendant made an offer of proof regarding the admissibility of certain testimony by Mr. Poindexter. The offer of proof was denied. In the offer of proof, defendant asserted that if allowed, Mr. Poindexter would testify that shortly after the accident, he placed a phone call to the attendant at a nearby service station, stating that he had witnessed the accident, and that it was the sole fault of the truck pulling out. Defendant contends that although, this testimony is hearsay, it is admissible pursuant to either Rule 803(1) or 803(2), M.R.Evid., as either a present sense impression or an excited utterance.

The statement at issue was clearly hearsay. Defendant presented no facts in the offer of proof which would place this statement within either the present sense impression or excited utterance exception to the hearsay rule. We conclude that this offer of proof was properly denied. We affirm the District Court on this ruling.

III

Did the District Court err in allowing a police officer to testify as to the cause of the accident?

Officer Oberg, a Billings city police officer, investigated the accident shortly after it occurred. He was not an eyewitness to the accident. At trial he testified that he had investigated several hundred automobile accidents in his 14 years as a police officer. He testified that his investigation of this accident included interviews with the parties involved, and observations of the scene of the accident, the vehicles, and the road conditions. Officer Oberg was then asked to state his opinion as to the cause of the accident. He stated that in his opinion defendant was driving too fast for the road conditions. Defendant objected to this testimony at trial, urging lack of foundation. Defendant also contends the accident was not sufficiently complex to necessitate expert opinion regarding causation.

We do not agree that an officer with years of experience in investigating accidents cannot assist the jury in its determinations. In Foreman v. Minnie (1984), 211 Mont. 441, 689 P.2d 1210, this Court allowed a deputy sheriff to testify as to the cause of an automobile accident. In Foreman we also noted that there was adequate opportunity to cross-examine the officer regarding any facts underlying the expert opinion. For other cases allowing an investigating officer to testify regarding the cause of an automobile accident or vehicular speed, see Goodnough v. State (1982), 199 Mont. 9, 647 P.2d 364; Rude v. Neal (1974), 165 Mont. 520, 530 P.2d 428.

We conclude that Officer Oberg’s testimony could assist the trier of fact on the issue of causation. He had extensive experience in these types of investigations and an adequate foundation was presented for his testimony. Defense counsel cross-examined the officer as to the basis of his opinion. The jury is free to decide the weight to be given this testimony. Goodnough, 647 P.2d at 369.

We affirm the District Court’s ruling on this issue.

IV

Did the District Court err in excluding testimony regarding a traffic citation?

Defendant made an offer of proof during trial, requesting that she be allowed to testify to an' alleged statement made to her by Officer Oberg. The offer of proof stated that if allowed defendant would testify that while issuing her a traffic citation, Officer Oberg told her, “I’m going to issue this to you, but you don’t deserve it, but I have to do it because of my superiors. If I don’t do it, they will make me go out and issue it, and then just cause some additional problems.” Her offer of proof further stated that Officer Oberg told her if she would plead not guilty, he would request that the ticket be dismissed. Defendant contended that although this alleged statement was hearsay, it was admissible to impeach Officer Oberg’s testimony regarding the cause of the accident. The trial court denied this offer of proof.

The offered testimony refers to the issuance of a criminal citation and is inadmissible because it is irrelevant and prejudicial. Further, such testimony has no bearing on the cause of the accident. Smith v. Rorvik (Mont. 1988), [231 Mont. 85,] 751 P.2d 1053, 1056, 45 St.Rep. 451, 455. Additionally, the testimony was hearsay and did not directly impeach Officer Oberg’s former testimony. We conclude that the District Court did not err in denying this offer of proof. We affirm the District Court’s ruling on this issue.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON and GULBRANDSON concur.

JUSTICE MCDONOUGH,

dissenting:

I would affirm the directed verdict in favor of the plaintiff. The defendant was clearly negligent as a matter of law. The defendant failed to slow and control her vehicle when difficulties of traffic on the highway were foreseeable to her and was the sole proximate cause of the accident.

On this record for a fact finder to find that plaintiff’s action in ultimately controlling her car was contributory negligence and a proximate cause of the accident is imaginative. There isn’t any substantial evidence favorable to the defendant which would permit such a finding.

There is not present here, nor under the icy conditions could there have been, a sudden stop or any action by plaintiff which would rise to the point of creating an unforeseeable emergency situation under these circumstances.

JUSTICE SHEEHY,

dissenting:

When this case was before us previously, it was a entitled Linda M. Hart-Anderson, plaintiff, v. Geraldine C. Hauck and State Farm Insurance Company, defendants (1988), [230 Mont. 63,] 748 P.2d 937. Hart-Anderson had sued Hauck and her insurer, State Farm Insurance Company, because of the collision which occurred in Billings, Montana, December 6, 1982. It was the position of Hart-Anderson that Hauck was solely responsible for the collision, that Hauck’s insurer should have recognized her sole responsibility and paid the damages sustained by Hart-Anderson’s automobile, and that the failure of the insurer to quickly pay such claim was evidence of its bad faith in the handling of insurance claims.

On the first trial, the jury determined that Mrs. Hauck was negligent and her negligence was the proximate cause of the property damages suffered by Hart-Anderson; that Hart-Anderson was not negligent, and that as to comparative negligence Mrs. Hauck was 100 percent responsible and Linda Hart-Anderson was zero percent responsible. It found damages to Hart-Anderson’s car in the sum of $687.00; it found that Hart-Anderson had suffered emotional distress for which she was entitled to $25,000.00; and it found the insurer guilty of a breach of the Unfair Claims Settlement Act of Montana and levied exemplary damages against the insurer in the sum of $687,000.00.

On the first appeal to this Court, no issue was made by defendant Hauck or her insurer as to findings of the jury that Hauck was 100 percent responsible for the collision.

The judgment in the first case was reversed on appeal on issues relating to the claim against the insurer and no issue was decided on appeal which would dispute the finding of 100 percent negligence on the part of Mrs. Hauck. Nonetheless the majority of this Court, in an opinion ill-considered as we pointed out in dissent, reversed the cause for a retrial of all issues, and directed that the cause be bifurcated as to any liability of the insurer.

From the record of this case then, we have the finding of the first jury that Mrs. Hauck was 100 percent negligent because of the collision; we have the testimony of a respected retired claims adjuster that Hauck was 100 percent in fault in the accident and that the plaintiff was not negligent at all; we have the testimony of Earl Hanson, an attorney practicing law in Billings, that under the facts of this case Hauck was 100 percent negligent; and now, as to the retrial, which is now on appeal, the opinion of the District Court that the case should not go to the jury because the negligence of Hauck was so clearly established.

None of these circumstances deter the majority from ordering a new trial on the issue of negligence!

The District Court in this case granted the motion for directed verdict as to Hauck’s negligence because whether one accepted her version of the incident or that of the other witnesses, she was nonetheless solely responsible for the accident. The majority here has manufactured an issue of fact in stating “Defendant testified that plaintiff’s vehicle was stopped in front of her as she turned the corner, and that the impact occurred on Tenth Avenue.” That statement ignores that this case does not concern a sudden stop nor even a following-too-closely situation. Here the defendant Hauck had one-half to one-quarter of a block to see the danger and avoid the collision. Hauck had the primary responsibility to avoid the collision in that situation.

In Grabs v. Missoula Cartage Company, Inc. (1976), 169 Mont. 216, 219, 221, 545 P.2d 1079, 1081, 1082, this Court stated:

“The classic test employed to determine whether a question is one of fact or law, involves the application of a rule of reason. Where reasonable men could draw different conclusions from the presented evidence, the question is one of fact. But if only one conclusion could reasonably be drawn, the question is one of law, properly resolvable through the procedural device of directed verdict.
“But the primary responsibility must be on those drivers who have the opportunity to detect the potentially hazardous situation ahead. (Citing authority.)”

In Custer Broadcasting Corp. v. Brewer (1974), 163 Mont. 519, 521-522, 518 P.2d 257, 259, the Court said:

“However, in cases where a driver of a vehicle is following another vehicle too closely, we follow the doctrine that the primary duty of avoiding a collision rests upon the following driver.”

This case is controlled by the provisions of § 61-8-329, MCA, which provides:

“Following too closely. (1) The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway.”

In this case, Geraldine Hauck, following on an icy street, as the testimony shows, almost three-quarters of a block behind the Hart-Anderson vehicle, failed to keep her vehicle under control so as to avoid colliding with the Hart-Anderson vehicle. There can be no other conclusion but that she is 100 percent responsible.

District judges of this state are in an intolerable position because of the continuing pattern of this Court to set its face against all recoveries by plaintiffs whether by judge or by jury. Here, under the cases cited above in this dissent, the District Court would have been subject to reversal if it had not granted a directed verdict. Yet here the District Court has been reversed for following the law and granting a directed verdict. In this state we don’t need tort reform; what is wanting is court reform.

I would affirm. Two trials are enough already.

JUSTICE HUNT concurs in the foregoing dissent of JUSTICE JOHN C. SHEEHY.


author: JUSTICE McDONOUGH

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. WARREN DEAN BROWN, Defendant and Appellant.
    No. 88-595.
    Submitted on Briefs Sept. 21, 1989.
    Decided Oct. 24, 1989.
    781 P.2d 281.
    Randi Hood, Public Defender, Helena, for defendant and appellant.
    Marc Racicot, Atty. Gen., George M. Schunk, Asst. Atty. Gen., Mike McGrath, County Atty., Carolyn A. Clemens, Deputy County Atty., Helena, for plaintiff and respondent.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

This is an appeal from a conviction of felony assault. Defendant appeals a judgment of the First Judicial District of the State of Montana, Lewis and Clark County, contending that the evidence presented to the jury is insufficient to sustain the jury’s verdict finding him guilty of felony assault. We affirm the the trial court’s judgment.

On March 7, 1988, Kathy Brown, the wife of defendant Warren Brown, had asked the defendant to watch their two children ■— Amber, age 3, and Crystal, age 1 — for the day. The couple had been separated for approximately one month.

Kathy was scheduled to return for the children around 5:00 p.m. but did not return until approximately 6:30 p.m. Shortly after her arrival, the couple began arguing. The testimony conflicts as to the nature of this argument. Kathy testified that during the argument the defendant slapped her in the face and hit her in the nose with his fist causing her nose to bleed. Kathy then testified that the defendant forced her to clean the blood from the floor and held his pocketknife to her neck while she was cleaning. He then elongated a wire coat hanger, wrapped it around her wrist, and led her around by it.

According to Kathy’s testimony, the defendant then took her in the bedroom, removed a .22 caliber pistol from a cardboard file and loaded it. When he next told her to dress the children to go for a ride, she hesitated going to the car, and the defendant pointed the gun at her side. Kathy testified that the family went outside the apartment and she began screaming and resisting her husband. She testified that the defendant then struck her two or three times with the gun, at least once on the forehead and then on the top of her head. She dropped Crystal, whom she was carrying at the time, and fell to the ground. The defendant got on top of her, attempting to put one hand over her mouth and choke her with the other.

Kathy then testified that she managed to get free from the defendant, grab their oldest child and flee to a neighbor’s apartment. As she fled she saw the defendant pick up Crystal, point the gun at her side and return to his apartment.

Kathy’s testimony then indicated that the neighbor, Tammy Stokes, assisted with Kathy’s bleeding and called the police. Upon arriving, the police treated the disturbance as a hostage situation. The officers unsuccessfully attempted to contact the defendant in the apartment by pounding on the door, using a bullhorn, shining spotlights in the windows, and using a listening device to pick up sounds within the apartment. At 1:00 a.m. officers entered the apartment, finding the defendant and the child sleeping in the bedroom. The defendant was placed under arrest. When asked by officers where the gun was he directed them to the .22 pistol located in the file cabinet.

Meanwhile, Kathy Brown was taken to the emergency room of St. Peter’s Hospital in Helena and examined by Dr. James Burkholder. She informed the doctor that she had been struck on the forehead and top of the head with the butt of a pistol and punched in the nose. Dr. Burkholder testified that his examination revealed a broken nose, a superficial laceration on the forehead consistent with being struck by the butt of a gun, and linear abrasions on her left wrist consistent with being drug by a coat hanger.

At trial, Melissa Templin, an eight year old neighbor child testified that she heard a scream, looked out her window and saw Kathy on the ground with the defendant over her. She saw Kathy get up and flee from the defendant but did not see the defendant holding anything other than Crystal.

Julie Long, a forensic serologist from the Montana State Crime Laboratory testified that the .22 caliber pistol had an amount of human blood on the barrel.

In his testimony, the defendant acknowledged having an argument with his wife. He denied slapping her, putting a knife to her throat, leading her around his apartment with a coathanger, arming himself with his pistol, leaving the apartment with his family, and pistol-whipping his wife. Regarding Kathy’s broken nose, the defendant testified that during the course of the argument he reached for her to try to get by her and due to the slickness of the material of her blouse, her nose might have struck his forehead. He did acknowledge that she had a bloody nose, and testified that he assisted her in stopping the bleeding.

The defendant testified that after the argument abated Kathy took Amber and left to visit a neighbor. He then put Crystal to sleep and went to sleep himself. Because of a hearing impairment he was unable to hear and did not respond to the police’ efforts to contact him within the apartment. He testified that he willingly gave the police the pistol, which he was currently refurbishing and which lacked part of the firing mechanism.

Additionally, Arnold Garay, an acquaintance of both the defendant and Kathy Brown testified that Kathy frequently started arguments with the defendant, had once threatened the defendant with a knife, and often tried to claw his face and eyes. Mr. Garay also testified that Kathy had a poor reputation for truthfulness.

The sole issue raised by the defendant on appeal is whether the evidence at trial was sufficient to sustain the conviction for felony assault. Defendant contends that the evidence is sufficient at most to sustain a conviction for domestic abuse.

A person commits the offense of domestic abuse if he (1) purposely or knowingly causes bodily injury to a family member or household member; or (2) purposely or knowingly causes reasonable apprehension of bodily injury in a family member or household member. Section 45-5-206(1), MCA. The purpose to cause reasonable apprehension or the knowledge that reasonable apprehension would be caused shall be presumed in any case in which a person knowingly points a firearm at or in the direction of a family member or household member, whether or not the offender believes the firearm to be loaded. Section 45-5-206(1), MCA. To convict the defendant of the offense of felony assault the jury was required to find that the defendant purposely or knowingly caused (1) bodily injury to Kathy with a weapon, or (2) reasonable apprehension in Kathy of serious bodily injury by use of a weapon. Section 45-5-202(2), MCA. If, in fact, the defendant purposely or knowingly caused serious bodily injury to the victim, the offense would rise to the level of aggravated assault. Section 45-5-202(1), MCA.

Thus, in cases where bodily injury is inflicted to a family or household member, the distinction between felony assault and domestic abuse is that felony assault requires use of a weapon. In cases involving reasonable apprehension of bodily injury in a family or household member, felony assault, in comparison to domestic abuse, requires two additional elements: use of a weapon and that the bodily injury apprehended is of a serious nature. Sections 45-5-206, 45-5-202, MCA.

Here, the State offered proof of felony assault in that defendant caused bodily injury with a weapon by striking the victim with a handgun. The State’s proof could also establish the elements of felony assault if the jury found it reasonable for Kathy to apprehend that the defendant might shoot her or stab her with his pocketknife.

The well established standard of review regarding sufficiency of the evidence is: “Whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” State v. Tracy (Mont. 1988), [233 Mont. 529,] 761 P.2d 398, 400, 45 St.Rep. 1705, 1707; State v. Cox (1987), 226 Mont. 111, 733 P.2d 1307, 1309, 44 St.Rep. 496, 498. “This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson v. Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 6 L.Ed.2d 560, 573. “The weight of the evidence and credibility of the witnesses is exclusively the province of the trier of fact. If the evidence conflicts, it is within the province of the trier of fact to determine which shall prevail.” State v. Oman (1985), 218 Mont. 260, 265, 707 P.2d 1117, 1120.

The issue of the sufficiency of the evidence in this case is raised because of the conflict between the testimony of the defendant and the victim. With respect to this conflict, defendant’s appeal is analogous to the appeal in State v. Roberts (Mont. 1981), [_Mont. -,] 633 P.2d 1214, 38 St.Rep. 1551, where we said:

“The issue of sufficiency of the evidence boiled down to the credibility of the State’s witnesses vis-a-vis the defendant’s testimony. The jury by its verdict resolved this conflict in favor of the State.” Roberts, 633 P.2d at 1218, 38 St.Rep. at 1556. Here the jury weighed the credibility of the conflicting evidence and chose to believe the State’s witnesses, which clearly established with substantial evidence the essential elements of felony assault.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES SHEEHY, BARZ and HARRISON concur.