City of Msla v. Walker , 2013 MT 134N ( 2013 )

May 15 2013
DA 12-0391
IN THE SUPREME COURT OF THE STATE OF MONTANA
2013 MT 134N
CITY OF MISSOULA,
Plaintiff and Appellee,
v.
ROBERT OSCAR WALKER,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DC-12-24
Honorable Edward McLean, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Wade Zolynski, Chief Appellate Defender, Nicholas Domitrovich,
Assistant Appellate Defender, Helena, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant
Attorney General, Helena, Montana
Jim Nugent, Missoula City Attorney, Andrew Scott, Assistant City
Attorney, Missoula, Montana
Submitted on Briefs: March 27, 2013
Decided: May 14, 2013
Filed:
__________________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 Robert Walker was charged with misdemeanor criminal trespass and misdemeanor
partner/family member assault (PFMA). Following a bench trial, he was acquitted of
trespass but convicted of PFMA. Walker appeals his PFMA conviction. We affirm.
¶3 In June 2011, Walker entered the apartment of his ex-girlfriend Debra Hemmer
while she was not at home. He testified that he did this regularly to clean her apartment
and to help her in other ways. On this particular day when she returned home, Walker
became frustrated with Hemmer because he claimed she was not taking care of herself
adequately. He alleged she was intoxicated. He stated that when he spoke to her she
looked down instead of at him so he lifted her chin and tapped her on the head to “get her
attention.” Hemmer became frightened, told him to leave and called the police. Walker
left before the police arrived. When Officer Poling arrived, Hemmer claimed Walker had
frightened her and caused her physical pain that she was still experiencing. Following
the interview with Hemmer, Poling found Walker on the street. He was arrested and
charged shortly thereafter.
¶4 In December 2011, Walker and Poling testified at Walker’s Municipal Court
bench trial. Hemmer did not testify. Poling stated that at the time she responded to
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Hemmer’s call and interviewed Hemmer, she saw no evidence that Hemmer was
intoxicated. However, a short time later when she picked up Walker, Walker displayed
signs of intoxication. Walker testified that he raised his voice to Hemmer and he might
have “hit her kind of hard” but he never intended to hurt her. The court found Hemmer
not guilty of criminal trespass but guilty of PFMA. It pronounced sentence from the
bench. The sentence was stayed pending appeal of the conviction to the Fourth Judicial
District Court. The District Court’s two sentence order, containing no factual findings or
rationale, denied Walker’s appeal and remanded the case for imposition of sentence.
Walker filed a timely appeal to this Court. On appeal Walker claims that the evidence
before the court was insufficient to support his conviction of PFMA and his conviction
should be overturned.
¶5 Section 45-5-206(1)(a), MCA, provides: “A person commits the offense of
partner or family member assault if the person purposely or knowingly causes bodily
injury to a partner or family member.” “Partners” is defined as “spouses . . . and persons
who have been or are currently in a dating . . . relationship . . . .” Section 45-5-206(1)(b),
MCA. “Bodily injury” is “physical pain, illness, or an impairment of physical condition
and includes mental illness or impairment.” Section 45-2-101(5), MCA. Walker argues
on appeal that there was no evidence presented that he “purposely or knowingly” caused
Hemmer bodily injury.
¶6 As we noted in State v. Bay, 2003 MT 224, ¶ 16, 317 Mont. 181, 75 P.3d 1265,
“[a] person’s mental state rarely can be proved by direct evidence; it usually must be
inferred from the facts and circumstances about which the witnesses testify. Indeed, a
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defendant’s mental state may be inferred from his or her actions and the facts and
circumstances connected with the offense charged.” (Internal citations omitted.) See
also § 45-2-103(3), MCA. In Bay, Bay attempted to leave the courtroom after the judge
pronounced her in contempt. An officer blocked her exit and Bay pushed the officer very
hard and caused the officer to fall back in pain. A struggle ensued and as the officer was
attempting to restrain Bay, the officer collapsed in pain when her knee gave out. Bay,
¶ 5. Bay left the courtroom but was arrested a short time later and charged with assault of
a peace officer and resisting arrest. Bay, ¶¶ 8-9.
¶7 As does Walker, Bay argued that “the State did not present sufficient evidence
regarding the requisite mental state for the offense because she did not purposely or
knowingly cause bodily injury to [the officer].” Bay, ¶ 12. We determined, however,
that “we need not determine whether Bay purposely or knowingly caused [the officer’s]
knee injury; we need only examine the evidence—in the light most favorable to the
prosecution—to determine whether it would permit a rational jury to find the elements of
assault on a peace officer beyond a reasonable doubt.” Bay, ¶ 13. Based upon Bay’s
agitated courtroom demeanor, her hostile tone with the judge, her stated intention to not
being taken into custody on a contempt charge, and the fact she physically shoved the
officer “very hard,” we concluded that a “jury could reasonably infer that Bay was aware
of the high probability that her conduct in shoving [the officer] hard enough to knock
[her] backwards would result in physical pain . . . and therefore, that Bay acted
‘knowingly.’ ” Bay, ¶ 18.
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¶8 In the case before us, while not convicted of criminal trespass, Walker nonetheless
entered Hemmer’s home on that day without her invitation or permission and while she
was not there. He admitted that he was upset with Hemmer, he yelled at her, he took her
face in his hands, he poked at her head with his fingers, and he may have hit her “kind of
hard.” He then left her apartment when Hemmer called the authorities. As with the Bay
evidence, this testimony in addition to the evidence presented by the officer obtained
during her interview with Hemmer is sufficient to convict Walker of PFMA under
§ 45-5-206(1)(a), MCA.
¶9 Having determined that there was sufficient evidence to find Walker guilty of
PFMA, we need not address Walker’s complaint that the District Court’s order affirming
the Municipal Court’s conviction was inadequate or his claim that the District Court did
not review the Municipal Court record adequately.
¶10 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of
our Internal Operating Rules, which provides for noncitable memorandum opinions. The
issue in this case is legal and is controlled by settled Montana law which the District
Court correctly interpreted. We therefore affirm the District Court.
/S/ PATRICIA COTTER
We Concur:
/S/ MICHAEL E WHEAT
/S/ BRIAN MORRIS
/S/ LAURIE McKINNON
/S/ JIM RICE
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