State v. Keup , 228 Mont. 194 ( 1987 )


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  •                                 No. 87-167
    IN THE SUPREME COURT OF THE STATE OF MONTANA
    1987
    STATE OF MONTANA,
    Plaintiff and Respondent,
    -vs-
    RONALD ALBERT KEUP,
    Defendant and Appellant.
    APPEAL FROM:     District Court of the Thirteenth Judicial District,
    In and for the County of Yellowstone,
    The Honorable G. Todd Baugh, Judge presiding.
    COUNSEL OF RECORD:
    For Appellant:
    Richard J. Carstensen, Billings, Montana
    For Respondent:
    Hon. Mike Greely, Attorney General, Helena, Montana
    Joe Roberts, Asst. Atty. General, Helena
    Harold Hanser, County Attorney, Billings, Montana
    Brent Brooks, Deputy County Atty., Billings
    - -
    -
    Submitted on Briefs: July 14, 1987
    Decided: August 20, 1987
    Filed:
    AUG 2 0 1987
    Mr. Justice John C. Harrison delivered the Opinion of the
    Court.
    Defendant appeals a verdict of misdemeanor    assault,
    S 45-5-201(1) (d), MCA, in the District       Court of the
    Thirteenth Judicial District in and for       the County of
    Yellowstone.   The conviction was the result of a trial de
    novo from similar conviction in Yellowstone County Justice
    Court. Defendant also appeals the District Court's denial of
    a motion for new trial.
    Defendant was fined $500, sentenced to six months in
    jail with all but five days suspended and ordered to sell his
    firearms and donate the proceeds to charity. We affirm the
    District Court.
    Defendant claims on appeal that the District Court
    erred when it denied his motion to dismiss the case at
    conclusion of State's evidence.    He argues that there was
    insufficient evidence on which a reasonable trier of fact
    could have found the defendant guilty. He also appeals the
    District Court's decision not to allow the defendant to
    testify as to buckshot found in the defendant's yard.
    Defendant intended to use this evidence to show that he shot
    into the ground, not in the direction of the complaining
    witness, Carolyn Pederson.
    The facts in this case are relatively simple.       Ms.
    Pederson had recently moved to a duplex next to the
    defendant.    Ms. Pederson had two dogs, which she left
    confined to the backyard while she was at work. On December
    23, 1985, Ms. Pederson arrived home at approximately 9:30
    p.m. to find the defendant's wife waiting to complain about
    the noise of the dogs.       Ms. Pederson proceeded to her
    backyard to unleash the dogs so as to put them in the garage
    and away from the defendant's property. She testified that
    a s s h e was s t a n d i n g n e x t t o t h e l a r g e r dog, s h e t u r n e d around
    and saw a r i f l e b a r r e l p r o t r u d i n g from t h e d e f e n d a n t ' s d o o r ,
    some t h i r t y y a r d s away.                She l a t e r t e s t i f i e d t h a t a l t h o u g h
    s h e c o u l d n o t s e e who was h o l d i n g t h e r i f l e , t h e b a r r e l was
    pointed       a t her.            Ms.     Pederson t e s t i f i e d t h e r i f l e was t h e n
    fired      and     she heard             a male v o i c e      say,       "This i s m doggie
    y
    barking.           This i s m doggie barking.
    y                                   "    She r e t r e a t e d t o h e r
    house        and    eventually              authorities         were          summoned       and    the
    d e f e n d a n t was a r r e s t e d .
    Another n e i g h b o r , John D a u b e r t , who was g e n e r a l l y aware
    of     t h e problem d e f e n d a n t had w i t h t h e d o g s ,                   testified that
    when he h e a r d t h e s h o t he t o l d h i s w i f e "he [Keup] p r o b a b l y
    s h o t t h e dog."         I n a d d i t i o n , t h e S t a t e c a l l e d Peggy Z i e l i e , a
    business         acquaintance of               t h e defendant,           who t e s t i f i e d    that
    t h e d e f e n d a n t had asked h e r t o t e s t i f y i n t h i s m a t t e r .                  At
    t r i a l s h e s a i d "he had grabbed h i s gun and s h o t a t t h e dog."
    Defendant t e s t i f i e d t h a t he was awakened by t h e n o i s e
    of     the    dogs       and       went      to     the    backdoor            to     see   what    was
    occurring.             He    testified            that    he    saw       a    "big white          [dog]
    l u n g i n g a g a i n s t t h e c h a i n and I c o u l d s e e s h e was r e l e a s i n g
    him and he was coming s t r a i g h t t o me                         ...            I was a f r a i d he
    was     going t o g e t           loose       and    get out         of       her     control."      He
    t e s t i f i e d t h a t he t h e n " f i r e d a s h o t i n t o t h e ground" o u t s i d e
    h i s d o o r t o " d i s s u a d e " t h e dog.            He l a t e r t e s t i f i e d t h a t he
    d i d not recognize M s .                  Pederson a t t h e t i m e ,              he saw " j u s t a
    form,      an o u t l i n e . "         He t e s t i f i e d t h a t he d i d n o t i n t e n d t o
    harm M s .      P e d e r s o n , t h a t t h e dog calmed down and he went back
    t o bed.
    Defendant was c h a r g e d w i t h v i o l a t i n g S 4 5 - 5 - 2 0 1 ( 1 )             (d),
    MCA.      That s u b s e c t i o n r e a d s :
    A person         commits t h e o f f e n s e o f             assault
    i f he:
    (d) purposely    or    knowingly   causes
    reasonable apprehension of bodily injury
    in another.      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 another,
    whether or not the offender believes the
    firearm to be loaded.
    Defendant's first argument is that the District Court
    should have dismissed the case because the State failed to
    prove the elements of the crime. This argument is meritless.
    The State demonstrated that Ms. Pederson saw a rifle pointed
    at her from inside defendant's home, that a shot was fired
    and that at the time of the shooting Ms. Pederson was
    standing near her dogs.     The State offered evidence from
    Daubert and a county sheriff's deputy that the general area
    was well lit.      Ms. Zielie's testimony shows that the
    defendant admitted he fired at the dogs, near where Ms.
    Pederson was standing.
    Section 46-16-403, MCA, entitles the District Court to
    dismiss a case at the end of the State's case, or to grant
    such a defense motion, when such evidence is insufficient to
    support a verdict of guilty. The decision whether to grant a
    motion to dismiss lies solely in the sound discretion of the
    trial court and that decision will not be disturbed unless an
    abuse of judicial discretion is shown.       State v. Gonyea
    (Mont. 1987), 
    730 P.2d 424
    , 426, 44 St.Rep. 39, 42; State v.
    Doney (Mont. 1981), 
    636 P.2d 1377
    , 1381, 38 St.Rep. 1707,
    1711; State v. White Water (Mont. 1981), 
    634 P.2d 636
    , 637,
    38 St.Rep. 1664, 1666; State v. Hart (Mont. 1981), 
    625 P.2d 21
    , 28, 38 St.Rep. 133, 139, cert. denied 
    454 U.S. 827
    , 
    102 S. Ct. 119
    , 
    70 L. Ed. 2d 102
    .
    The District Court did not abuse its discretion. The
    evidence offered by the State in this case was sufficient to
    convince a rational trier of fact that defendant did fire at
    the dog, that Ms. Pederson was standing next to the dog, that
    she was aware a shot had been fired in her direction. Such
    evidence satisfies this Court's standard of review for
    sufficiency of evidence:
    Whether, after viewing 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. Kutnyak (Mont. 1981), 
    685 P.2d 901
    , 910, 41 St.Rep.
    1277, 1288-89. See Jackson v. Virginia (1979), 
    443 U.S. 307
    ,
    319, 
    99 S. Ct. 2781
    , 2789, 
    61 L. Ed. 2d 560
    , 573.
    Defendant asserts the evidence is insufficient since
    Pederson claimed she saw a rifle and he testified he fired a
    "snakeload" of BB's with a derringer, although there were two
    rifles in the house. Defendant claims such a shot from the
    derringer would have been harmless thirty feet away.
    Even assuming the defendant is correct in these
    assertions of fact, he is still guilty of assault under the
    law. Section 45-5-201 (1)(d) makes it an offense to point a
    firearm, be it a high powered rifle or a tiny derringer, in
    the direction of another, regardless of whether the firearm
    is loaded, so as to cause apprehension of bodily injury in
    that other person.    The jury may use common experience to
    conclude that a person would experience fear in a given
    situation. State v. Lewis (Mont. 1986), 
    715 P.2d 1064
    , 1067,
    43 St.Rep. 492, 495; State v. Case (Mont. 1980), 
    621 P.2d 1066
    , 1069, 37 St.Rep. 2057, 2059-60.
    Defendant ' s second basis for appeal is similarly
    without merit.     He argues that the buckshot the defendant
    later located in his yard is physical evidence capable of
    proving the fact that defendant did not fire in the direction
    of Ms. Pederson.    He further claims that the testimony of
    defendant and another proposed witness is sufficient
    foundation for this physical evidence. Such is patently not
    the case.
    Section 26-1-201, MCA, vests in the District Court the
    authority to admit or to reject any evidence that lacks
    proper foundation. State v. Austad (1982), 
    197 Mont. 70
    , 94,
    
    641 P.2d 1373
    , 1386.     Where the proposed exhibit is not
    properly linked to the event in dispute, the District Court
    is free to refuse admission of the exhibit.    State v. Fox
    (Mont. 1984), 
    689 P.2d 252
    , 254, 41 St.Rep. 1884, 1886. In
    the present case, the District Court concluded that the BB
    pellets lacked any probative value since no ballistics tests
    were conducted and the pellets could not be tied to the
    alleged weapon or the alleged time and place of the incident
    except by the defendant's testimony.
    Coupled with the fact that the defendant did not notify
    the State of such evidence until less than a week before
    trial, the court decided to grant the State's motion in
    limine to exclude such evidence. We fail to see any abuse of
    discretion by the trial court; defendant attempted to
    introduce tangible evidence after the thirty-day notice
    period set forth in § 46-15-323(4) (c), MCA, and he was unable
    to vouch for it to the trial court's satisfaction.        Such
    evidence is properly excludable and does not form any grounds
    for a demand to a new trial.
    ~f firmed.
    

Document Info

Docket Number: 87-167

Citation Numbers: 228 Mont. 194, 741 P.2d 1330, 44 State Rptr. 1451, 1987 Mont. LEXIS 977

Judges: Harrison, Turnage, Weber, Sheehy, McDonough

Filed Date: 8/20/1987

Precedential Status: Precedential

Modified Date: 10/19/2024