State v. Greenwell ( 1983 )

NO. 83-155
1 4 THE SUPREME COURT O THE STATE O F M N A A
1 F O T N
1933
STATE O MONTANA,
F
P l a i n t i f f and Appellant,
-vs-
HOWARD EDWARD GREETWELL,
Defendant and Respondent.
APPEAL FROM: D i s t r i c t Court of t h e Nineteenth J u d i c i a l D i s t r i c t ,
I n a n d f o r t h e County o f L i n c o l n ,
The I f o n o r a b l e R o b e r t ? . o l t e r , J u d g e p r e s i d i n g .
IH
COUNSEL O RECORD:
F
For Appellant:
Bon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
W i l l i a m A. D o u g l a s , County A t t o r n e y , L i b b y , Montana
For Respondent:
S c o t t B. S p e n c e r , L i b b y , Montana
S u b m i t t e d on B r i e f s : August 4 , 1383
Decided: October 6 , 1983
Filed: OCT 6 - '1983
--
clerk
Mr. Justice John Conway Harrison delivered the Opinion of
the Court.
This is an appeal of a conviction of two counts of
aggravated assault following a jury trial in the Nineteenth
Judicial District, the Honorable Robert H. Holter presiding.
The appellant was sentenced to serve a period of ten years
in the Montana State Prison on each count, sentences to run
concurrently. In addition, each of the sentences were
enhanced by a two-year term pursuant to section 46-18-221,
MCA, due to the fact that a weapon was involved in the
assaults. The appellant was designated a dangerous
offender .
The appellant and his family attended a Libby Logger
Days carnival in Libby, Montana, on July 18, 1982.
Appellant drove to the carnival in a 1973 two-door Pontiac
which contained several guns which he was keeping, according
to his testimony, because of a recent burglary of his home.
Appellant testified that earlier in the day he had
gotten into an altercation with Bob Precht and Randy Martin,
a/k/a "Teardrop." At the time of this altercation, the
appellant apparently pulled a pocketknife on "Teardrop" and
he testified that "Teardrop" tried to pull a knife first.
Fortunately, a deputy sheriff was summoned and managed to
stop the argument and sent the appellant home.
According to the appellant's testimony, they returned
to the carnival about 6:00 p.m. at the request of his
children. He testified that he and his wife stayed outside
the carnival grounds while the children went in. At the
time the children were returning to the car, the appellant
testified he had a confrontation with "Teardrop" and that
"Teardrop" stated he was going to get a gun. He testified
that "Teardrop" ran off when the children arrived at the
car. They then got into the car and started to drive off.
The appellant testified that as he was driving through
the gate to the carnival, he saw "Teardrop" with a gun
pointed at him, and that his daughter Eva screamed at him,
"Daddy, he's got a rifle." In addition, his son Howard, Jr.
said, "He's got a rifle. Let's get out of here." He
testified that he jumped out of his car, pulled his rifle
out and at that time, he could see "Teardrop's" gun pointed
at him. He further testified that he consciously pointed
the gun only at "Teardrop." Shortly thereafter, a deputy
sheriff arrived and took away the appellant's rifle.
The State's witnesses tell a considerably different
story. Michelle Taaffe is a thirty-year-old Libby resident
and a mother of one child. On the evening of July 18, 1982,
she was volunteering her time selling watermelons in a Girl
Scout booth at the Libby Logger Days carnival, helping to
raise money for a babysitting co-op. Camilla Leckrone,
another State witness, is a thirteen-year-old eighth grader
who attends Libby Junior High School.
Mrs. Taaffe testified that at approximtely 7 : 0 0 p.m.
she was getting ready to close down the watermelon stand.
The stand was located near the entrance of the fairgrounds.
Camilla Leckrone was walking out of the parking lot in the
vicinity of the watermelon stand and at that time she
t e s t i f i e d s h e saw a s c a r e d , unarmed man r u n n i n g t o w a r d h e r ,
going toward the entrance to the fairgrounds. She
r e c o g n i z e d t h e man a s a c a r n i v a l w o r k e r named Randy M a r t i n .
At the same time, a car was coming from the same
d i r e c t i o n a s M a r t i n had b e e n r u n n i n g f r o m , and s h e t e s t i f i e d
it p u l l e d d i r e c t l y i n f r o n t of t h e watermelon s t a n d . The
c a r s t o p p e d and t h e a p p e l l a n t , Howard G r e e n w e l l , pushed a
r i f l e o u t o f t h e window o f t h e c a r . She t e s t i f i e d t h a t t h e
r i f l e was p o i n t e d a t her. Mrs. Taaffe further testified
t h a t Randy M a r t i n was r u n n i n g t h r o u g h t h e e n t r a n c e o f the
f a i r g r o u n d s when t h e d e f e n d a n t g o t o u t o f the car with a
rifle. Randy M a r t i n had n o t y e t r e a c h e d a p i c k u p p a r k e d i n
t h e c a r n i v a l g r o u n d s and s h e t e s t i f i e d t h a t the appellant
p o i n t e d h i s gun a t h e r b e f o r e Randy M a r t i n l e f t h e r l i n e o f
sight.
Testimony f u r t h e r i n d i c a t e s a s t h e a p p e l l a n t g o t o u t
o f t h e c a r , he r a i s e d t h e r i f l e t o h i s s h o u l d e r , l o o k e d Mrs.
T a a f f e r i g h t i n t h e e y e s and t r a i n e d t h e r i f l e a t h e r . Mrs.
T a a f f e t e s t i f i e d t h a t t h e r i f l e was h e l d on h e r f o r s e v e r a l
s e c o n d s a n d t h a t i t was l e v e l e d a t h e r t h r e e times. She
testified that she was afraid of being shot because it
l o o k e d t o h e r a s t h o u g h t h e a p p e l l a n t , who was v e r y c l o s e t o
h e r , c o u l d s h o o t h e r and o t h e r s a r o u n d h e r . She was a f r a i d
of s e r i o u s b o d i l y harm. T e s t i m o n y i n d i c a t e s t h a t s h e was
w o r r i e d a b o u t t h e c h i l d r e n around h e r and t h a t s h e f e l t s h e
s h o u l d g e t t h e y o u n g s t e r s i n t o a v e h i c l e backed up a g a i n s t
t h e w a t e r m e l o n s t a n d and l e a v e t h e p l a c e . She g r a b b e d a
friend's l i t t l e g i r l and p u t h e r i n t h e c a r and t r i e d to
p r o t e c t a l i t t l e g i r l who was s t a n d i n g t o h e r l e f t . This
l i t t l e g i r l was C a m i l l a L e c k r o n e . A c c o r d i n g t o Mrs. T a a f f e ,
Camilla was "petrified" and "couldn't move. " Camilla "was
crying, her face was all red, her hands were down at her
sides, and she was just shaking." At that point, Mrs.
Taaffe grabbed Camilla, put her in the back of the car and
went directly to the police department.
Camilla testified that as she was leaving the
fairgrounds she saw a dark blue car approach her. The car
stopped, the defendant got out of the car, waved a gun at
the people, and pointed the gun directly at her head. She
testified that the appellant held the gun into his
shoulders, leveled the gun at her, and told her to "get the
out of here." She said the defendant's eyes were
looking at her while the rifle was leveled at her and that
all of this happened at a distance of about twelve feet. In
addition to the testimony of these two women, Vicky
Ericksmoen, a friend who was with Camilla, testified that
the appellant pointed the gun in the direction of Camilla
and Mrs. Taaffe. Jean Richmond, another friend who was with
Camilla, testified that the appellant pointed the gun at her
for three seconds when she startled him.
In addition to the testimony of the women, there was
testimony by the law officers who were in the area. Don
Bernall, a detective for the Lincoln County sheriff's
department testified that he was off-duty and driving past
the Logger Day's carnival after picking up his two children.
He testified he saw the appellant yelling and waving his
rifle in front of the crowd of people. Bernall, fearing for
the safety of his two little boys who were in the car with
him, pulled his car up the road, turned it off and ran back
to the appellant's location. At that point, he observed
a n o t h e r L i n c o l n County d e p u t y s h e r i f f , Clint Gassett, who
had a r r i v e d on t h e s c e n e a b o u t t h e same t i m e and saw him
g r a b t h e g u n ( w h i c h was p o i n t e d u p i n t h e a i r ) away f r o m t h e
defendant, disarming him. The weapon was placed in
G a s s e t t ' s c a r where B e r n a l l examined i t and found it t o b e a
British .303 rifle, w h i c h was l o a d e d w i t h a r o u n d i n t h e
chamber, a d d i t i o n a l r o u n d s i n t h e c l i p , and t h e s a f e t y w a s
off. At that point, t h e a p p e l l a n t was p l a c e d u n d e r a r r e s t
and c h a r g e d w i t h t h r e e c o u n t s o f a g g r a v a t e d a s s a u l t , A t the
close of the evidence, the trial court granted the
a p p e l l a n t ' s motion t o d i s m i s s count t h r e e , the aggravated
a s s a u l t charges involving Randy M a r t i n . The trial judge
d e n i e d m o t i o n s t o d i s m i s s c o u n t o n e a n d two, t h o s e i n v o l v i n g
Mrs. Taaffe and Camilla Leckrone because there was
s u f f i c i e n t e v i d e n c e and t h e r e f o r e the matter should go t o
the jury.
Two i s s u e s a r e p r e s e n t e d :
1. Is there sufficient substantial evidence to
s u p p o r t t h e v e r d i c t ; and
2, Is the evidence consistent with any theory of
innocence?
The State notes that the appellant offers two
inconsistent propositions for reversal: (1) a t o t a l l a c k o f
evidence t h a t proves a culpable mental s t a t e ; and, (2) the
circumstantial evidence is as equally consonant with
innocence a s with g u i l t , t h e r e f o r e , mandating an a c q u i t t a l .
B u t s i n c e t h e a p p e l l a n t a d m i t t e d t h a t a weapon was i n v o l v e d
a n d t h a t b o t h v i c t i m s were a p p r e h e n s i v e o f serious bodily
injury, the sole i s s u e on a p p e a l is whether t h e evidence
supports the jury's findings t h a t the appellant acted with
the requisite mental state.
It is the respondent's position that the appellant's
intent was proven by the use of circumstantial evidence, and
that the evidence relied on by the jury to convict under the
facts here is susceptible of only one reasonable inter-
pretation -- that the appellant knowingly or purposely
caused a reasonable apprehension of serious bodily harm to
the two victims. Finally, the State argues that the
evidence is substantial and more than adequate to support
the verdict.
The statute delineates the offense: "a person commits
the offense of aggravated assault if he purposely or
knowingly causes reasonable apprehension of serious bodily
injury in another by use of a weapon." Section
This Court recently, in the case of State v. Starr
(Mont. 1983), 6 6 4 P.2d 893, 40 St.Rep. 796, considered the
statutory words of purposely and knowingly. We noted in
that opinion:
"Occasionally, this Court has referred to
'specific intent' in discussing mental
states since the adoption of the 1973
Criminal Code. Parties and attorneys
should not be misled. It is well to keep
in mind the provisions of the Montana
Criminal Code as explained by Essman, A
Primer o n Mental state in the ~ o n t a n a
-----------
Criminal Code of 1973. 37 Mont.L.Rev.
"The Montana Code used only three
classifications in evaluating the
defendant's mental state: purposely,
knowingly, and negligently. These mental
state classifications are defined in
relation to four objectively measurable
conditions or occurrences: conduct,
circumstances, facts, and result.
However, all four criteria do not apply
to each mental state. 'Purposely,' which
means with a conscious objective, relates
to conduct or result. 'Knowingly,'
defined as 'awareness,' relates to
conduct, circumstances, facts or result.
'Negligently,' relates only to
circumstances and result, thus two
functions are performed in analyzing the
statute which describes an offense.
First, determining which mental state
must be proved, and second, determining
to which of the four conditions or
occurrences the mental states relate."
664 P.2d at 897-8.
In this case, whether the appellant had the requisite
"specific intent" as set forth by our stautes to assault the
victims is a question for the jury. The problem of proving
intent was considered by this Court in State v. Gone (1978),
179 Mont. 271 at 278, 587 P.2d 1291 at 1296:
". . . criminal intent, being a state of
mind, is rarely susceptible of direct or
positive proof and therefore must usually
be inferred from the facts testified to
by witnesses and the circumstances as
developed by the evidence. The question
of intent is a question for the jury."
State v. Pascgo (1977), 173 Mont. 121,
566 P.2d 802, 805, citing State v. Cooper
(1971), 158 Mont. 102, 489 P.2d 99.
Here, the State's direct evidence proved that the
appellant acted with a culpable mental state, and it was not
necessary to rely on circumstantial evidence.
It is the appellant's position that a reasonable
interpretation of the evidence given at trial, is that the
appellant did not point the gun at the victims. He
testified that any assault against Mrs. Taaffe and Miss
Leckrone were unintentional and excusable. The other
interpretation of the evidence is that the defense was not
established, the assaults upon the victims were deliberate
and were not excusable. Under this view, the circumstances
of the assault clearly prove that the appellant acted with
the requisite mental state. This interpretation established
the appellant's guilt. The a p p e l l a n t a r g u e s t h a t t h e j u r y
was bound t o a c c e p t t h e f i r s t v i e w a n d r e j e c t t h e s e c o n d ,
s i m p l y b e c a u s e t h e a p p e l l a n t would b e f o u n d i n n o c e n t u n d e r
t h e former and g u i l t y under t h e l a t t e r .
W e h a v e l o n g h e l d t h a t i t is u p t o t h e j u r y t o r e s o l v e
c o n f l i c t s of evidence. I t is a l s o up t o t h e j u r y t o give
some t e s t i m o n y more w e i g h t t h a n o t h e r s o r t o d i s c o u n t some
testimony altogether. On appeal, we have held that
p r e s u m p t i o n s change. T h i s Court is n o t a judge of e v i d e n c e ,
t h e j u r y is. The e v i d e n c e i s w e i g h e d o n a p p e a l i n a l i g h t
m o s t f a v o r a b l e t o t h e S t a t e , and a p p l i c a t i o n o f t h e r u l e t o
c i r c u m s t a n t i a l e v i d e n c e d o e s n o t change t h a t mandate.
Our s t a n d a r d o f r e v i e w on c r i m i n a l c a s e o n a p p e a l i s
w e l l established. The e v i d e n c e i s e x a m i n e d t o d e t e r m i n e i f
the verdict is s u p p o r t e d by substantial evidence. See,
S t a t e v . M e r s e a l ( 1 9 7 5 ) , 1 6 7 Mont. 412 a t 4 1 5 , 5 3 8 P.2d 1 3 6 6
a t 1368; Pascgo, 1 7 3 Mont. a t 125, 566 P.2d a t 805. In
S t a t e v. F i t z p a t r i c k ( 1 9 7 3 ) , 1 6 3 Mont. 220 a t 2 2 6 , 516 P.2d
6 0 5 a t 6 0 9 , we n o t e d t h a t t h i s C o u r t w i l l n o t a c t a s a t r i e r
of facts. If t h e r e is s u b s t a n t i a l evidence t o support a
v e r d i c t , it w i l l s t a n d .
A careful and thorough consideration of the record
c o n v i n c e s u s t h a t t h e r e is more t h a n s u f f i c i e n t e v i d e n c e t o
support t h e v e r d i c t of the jury and the judgment entered
thereon. The j u d g m e n t o f t h e D i s t r i c t C o u r t i s a f f i r m e d .
W e concur:
Chief J u s t i c e -