State v. Shegrud

March 11 2014
DA 13-0113
IN THE SUPREME COURT OF THE STATE OF MONTANA
2014 MT 63STATE OF MONTANA,
Plaintiff and Appellee,
v.
WILLIAM GROVER SHEGRUD,
Defendant and Appellant.
APPEAL FROM: District Court of the Twenty-First Judicial District,
In and For the County of Ravalli, Cause No. DC 11-169
Honorable Jeffrey H. Langton, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Jeanne M. Walker, Hagen & Walker, PLLC, Billings, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Pamela P. Collins, Assistant
Attorney General, Helena, Montana
William E. Fulbright, Ravalli County Attorney, Hamilton, Montana
Submitted on Briefs: February 5, 2014
Decided: March 11, 2014
Filed:
__________________________________________
Clerk
Justice Michael E Wheat delivered the Opinion of the Court.
¶1 William Shegrud (Shegrud) appeals from the judgment of the Montana Twenty-first
Judicial District Court, Ravalli County, sentencing him for his jury conviction of felony
criminal endangerment and for two misdemeanor offenses. We reverse and remand.
ISSUE
¶2 We review the following issue:
1. Did the District Court err by declining Shegrud’s proposed jury instruction of
negligent endangerment as a lesser included offense of criminal endangerment?
Because we reverse and remand for a new trial on this issue, we do not reach the other issues
Shegrud has raised in his appeal.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 On December 16, 2011, around 6:38 p.m., Ravalli County dispatch received a 911
report of a maroon pickup truck headed northbound on the Eastside Highway, towards
Stevensville, Montana, driving erratically. The caller testified that the truck slowed down
and made a turn at the Middle Burnt Fork Road intersection; then, turned again onto College
Street. Police Chief Marble heard the attempt to locate (ATL) while at his office. After
hearing that the truck had turned off the Eastside Highway and continued onto College
Street, Chief Marble headed towards Sixth Street, to try to intercept the vehicle on College
Street. At the intersection of College Street and Sixth Street, he found a red truck at a stop
sign. He saw Shegrud driving the truck. Looking down College Street, he did not see any
reddish-maroon vehicles coming, so he decided to follow the red truck. As he followed the
truck, he saw no sign Shegrud was driving erratically. The truck pulled into a gas station and
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Chief Marble radioed another Sargent, Birkeneder, to respond, because he was no longer
within his jurisdiction.
¶4 Sargent Birkeneder walked up behind the truck and saw a five-year old girl,
Shegrud’s daughter, in a child safety seat in the rear seat of the truck. Shegrud came out of
the gas station carrying a twenty-four pack of beer. While speaking with Shegrud, Sargent
Birkeneder could smell the odor of an alcoholic beverage on his breath. He observed
Shegrud’s eyes were red and watery and his speech was slurred. Based on Sargent
Birkeneder’s training and experience, it was “almost immediately obvious” to him that
Shegrud was “intoxicated, he was impaired.” Because Sargent Birkeneder was coming off
his shift, he radioed Deputy Wofford and turned the investigation over to him. Deputy
Wofford arrived within five or ten minutes.
¶5 Shegrud told Deputy Wofford that he had drunk two “tallboys.” He did not say where
he had consumed the tallboys. Shegrud’s ex-wife testified that Shegrud had not appeared
intoxicated to her when he had come to pick up his daughter about an hour earlier. Deputy
Wofford administered field sobriety tests on Shegrud. He noticed Shegrud appeared drowsy
and asked whether Shegrud was under the influence of anything else. Shegrud said he had
taken oxycodone, which he had been prescribed for his back injury. Based on the totality of
the circumstances, Deputy Wofford arrested Shegrud for driving under the influence (DUI)
and criminal endangerment. After he was arrested, Shegrud agreed to a blood test. The
blood test revealed a concentration of .07 grams of alcohol per 100 milliliters of blood, and
.06 milligrams per liter of oxycodone. Shegrud’s blood alcohol content was below the legal
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limit and his level of oxycodone was within therapeutic ranges when applying the margin of
error. Shegrud was on felony probation at the time.
¶6 Prior to the jury trial on June 11-13, 2012, Shegrud pled guilty to Driving with a
Suspended License and Displaying License Plates Assigned to Another Vehicle. The jury
was unable to reach a unanimous verdict on the charges of felony criminal endangerment and
felony DUI. The court declared a mistrial. The jury trial was reset for September 17-19,
2012. At the second trial, Shegrud’s counsel offered a jury instruction on negligent
endangerment as a lesser included offense of criminal endangerment. The court declined to
give that instruction. The jury found Shegrud guilty of criminal endangerment, but could not
reach a verdict on the DUI charge. Shegrud was sentenced for twenty years to the
Department of Corrections with fifteen suspended, as a persistent felony offender.
STANDARD OF REVIEW
¶7 The standard of review of a trial court’s refusal to give an instruction on a lesser
included offense is whether the trial court abused its discretion. State v. Feltz, 2010 MT 48,
¶ 14, 355 Mont. 308, 227 P.3d 1035. We review claims of instructional error in a criminal
case to determine whether the jury instructions, as a whole, fully and fairly instruct the jury
on the law applicable to the case. State v. Matz, 2006 MT 348, ¶ 13, 335 Mont. 201, 150
P.3d 367 (quotation omitted). Since a trial court has broad discretion when instructing a
jury, reversible error will occur only if the jury instructions prejudicially affect the
defendant’s substantial rights. Matz, ¶ 13 (quotation omitted).
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DISCUSSION
¶8 1. Did the District Court err by declining Shegrud’s proposed jury instruction of
negligent endangerment as a lesser included offense of criminal endangerment?
¶9 Section 46-16-607(2), MCA, provides that “[a] lesser included offense instruction
must be given when there is a proper request by one of the parties and the jury, based on the
evidence, could be warranted in finding the defendant guilty of a lesser included offense.”
See also Feltz, ¶ 17. A defendant is entitled to a lesser included offense instruction if two
criteria are met: (1) the offense is a lesser included offense as defined by § 46-1-202(9),
MCA; and (2) there is sufficient evidence to support an instruction on the lesser included
offense. Feltz, ¶ 17.
a. Lesser included offense.
¶10 The Dissent in State v. Martinosky, 1999 MT 122, ¶ 28, 294 Mont. 427, 982 P.2d 440,
argued that negligent endangerment is, by statutory definition, a lesser included offense of
criminal endangerment. Because we found that the evidence in that case did not support an
instruction on negligent endangerment, we did not decide that issue. See Martinosky, ¶ 22.
We address the issue now.
¶11 An offense constitutes a lesser included offense if it “differs from the offense charged
only in the respect that . . . a lesser kind of culpability suffices to establish its commission.”
Section 46-1-202(9)(c), MCA. A person commits the felony offense of criminal
endangerment in violation of § 45-5-207, MCA, when he or she “knowingly engages in
conduct that creates a substantial risk of death or serious bodily injury to another[.]” Section
45-5-207(1), MCA. A person commits the misdemeanor offense of negligent endangerment
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in violation of § 45-5-208, MCA, when he or she “negligently engages in conduct that
creates a substantial risk of death or serious bodily injury to another[.]” A person acts
knowingly for the purposes of criminal endangerment when “the person is aware that it is
highly probable that the result [of death or serious bodily injury to another] will be caused by
the person’s conduct.” Section 45-2-101(35), MCA; see State v. Lambert, 280 Mont. 231,
236, 929 P.2d 846, 849 (1996) (criminal endangerment is a result-based offense). In
contrast, a person acts negligently for the purposes of endangerment when “the person
consciously disregards a risk that the result [of death or serious bodily injury to another] will
occur . . . or when the person disregards a risk of which the person should be aware that the
result will occur[.]” Section 45-2-101(43), MCA; see Lambert, 280 Mont. at 236, 929 P.2d
at 849.
¶12 The only difference between criminal endangerment and negligent endangerment is
the state of mind with which the accused person acts. Negligence, in this context, gives rise
to a lesser culpability than does acting knowingly. We therefore hold that negligent
endangerment is, by statutory definition, a lesser included offense of criminal endangerment.
b. Sufficiency of the evidence.
¶13 Having determined that negligent endangerment is a lesser included offense of
criminal endangerment, we now address whether there is sufficient evidence to support an
instruction on negligent endangerment. See Feltz, ¶ 17. The evidence is sufficient to support
an instruction on a lesser included offense if “the jury, based on the evidence, could be
warranted in finding the defendant guilty of a lesser included offense.”
Section 46-16-607(2), MCA. The evidence does not support a lesser included offense
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instruction on negligent endangerment where the evidence shows clearly that the defendant
acted knowingly. See Martinosky, ¶¶ 21-22. Nor does the evidence support a lesser included
offense instruction where the defendant’s evidence or theory, if believed, would require an
acquittal. State v. Martinez, 1998 MT 265, ¶ 15, 291 Mont. 265, 968 P.2d 705.
¶14 This case is different from Martinosky, where the clear evidence of the defendant’s
mental state did not support an instruction on negligent endangerment. Martinosky was
convicted of criminal endangerment related to a high-speed car chase through residential
streets. He had admitted in a tape-recorded statement “that he saw the patrol car with its
lights flashing, that he did not want to be caught by police because he had been drinking and
could not afford a DUI charge, and that he drove away to avoid the police.” Martinosky,
¶ 21. He also admitted that he knew he had to be driving at least eighty miles an hour and
that he fled the scene after crashing into a house to evade police. Martinosky, ¶ 21. We
determined that this evidence conclusively established that Martinosky acted knowingly and,
therefore, it did not support an instruction on negligent endangerment. Martinosky, ¶ 22.
The evidence here is less conclusive. Shegrud’s statements to officers that he had drunk two
tallboys and taken prescribed oxycodone did not clearly establish awareness of a high
probability that death or serious bodily injury would be caused by his conduct. The jury had
to infer Shegrud’s mental state from the evidence of his conduct presented at trial. Shegrud
did not flee law enforcement or even respond to questioning evasively. Based on the
evidence, the jury could as reasonably have inferred that Shegrud acted negligently as
inferred that he acted knowingly.
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¶15 Unlike Martinez, this is not a case where Shegrud’s defense theory, if believed, would
require acquittal. In Martinez, a bystander provided the primary testimony to support
Martinez’s conviction for criminal endangerment. Martinez, ¶ 17. Martinez argued on
appeal that the jury could reasonably have found the bystander’s testimony not credible and
found him guilty of only negligent endangerment. Martinez, ¶ 19. We rejected that
argument, reasoning that if the jury had discounted the bystander’s testimony, there would
have been no evidence at all about Martinez’s actions and Martinez would have had to be
acquitted. Martinez, ¶ 20. Because Martinez’s theory of defense, if believed, would require
acquittal, the Court found the evidence did not support a proposed jury instruction on
negligent endangerment and did not reach the question of whether negligent endangerment is
a lesser included offense of criminal endangerment. Martinez, ¶¶ 19-20. The instant case is
distinguishable because a variety of evidence in the record could support a conviction of
negligent endangerment. Shegrud’s conviction did not hinge on the testimony of one key
witness; and his theory, if believed, would not require acquittal. In fact, the jury’s inability
to reach a verdict on the DUI charge suggests that Shegrud’s theory of defense gained some
traction with the jury, although it nonetheless convicted him of criminal endangerment.
¶16 We conclude that here, sufficient evidence existed to support a jury instruction on
negligent endangerment. Shegrud’s defense theory was there was no competent evidence to
establish beyond a reasonable doubt that he was driving impaired. The 911 caller reported a
maroon truck and Shegrud’s truck was red. The 911 caller never observed Shegrud driving
the vehicle in question. No police officer observed Shegrud driving erratically. Shegrud’s
blood alcohol concentration was below the legal limit and his oxycodone level was within
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therapeutic ranges. No expert testified that Shegrud was impaired. Shegrud admitted,
however, that he had consumed alcohol in combination with oxycodone and had driven with
his young daughter in his vehicle.
¶17 This evidence is sufficient to support both criminal and negligent endangerment
instructions. Regardless of whether the reported truck belonged to Shegrud, or whether
Shegrud was legally impaired, the evidence remained that Shegrud drove with his daughter
in his truck after taking oxycodone and drinking alcohol. A jury could reasonably find from
the evidence that Shegrud was aware that it was highly probable that this conduct would
create a substantial risk of death or serious bodily injury to Shegrud’s daughter. The
evidence also supports a negligent endangerment instruction, as it could support the
inference that Shegrud, instead, disregarded a risk of which he should have been aware that
death or serious bodily injury to his daughter would occur.
¶18 Where, as here, a jury could be warranted in finding a defendant guilty of a lesser
included offense, the district court is required to give a lesser included offense instruction if
requested by the parties. Section 46-16-607(2), MCA (providing that a lesser included
offense instruction must be given when the statutory criteria are satisfied). We conclude that
the District Court abused its discretion when it failed to give Shegrud’s proposed jury
instruction on negligent endangerment. We further conclude that Shegrud was prejudiced by
this error. He was convicted of a felony offense and was sentenced as a persistent felony
offender pursuant to §§ 46-18-501, -502, MCA. Had he been convicted of misdemeanor
negligent endangerment, his sentence would surely have been less onerous.
CONCLUSION
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¶19 We reverse Shegrud’s conviction of criminal endangerment and remand this matter to
the District Court for further proceedings consistent with this Opinion.
/S/ MICHAEL E WHEAT
We Concur:
/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ JIM RICE
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