State v. Van Haele

No. 32-481
IN THE SUP3EME COURT OF THE STATE OF PIONTASA
1983

THE STATE OF MONTANA,
Plaintiff and Respondent,

-vs-
THOMAS VAN HAELE,
Defendant and Appellant.

APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Robert H. Wilson, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Wade J. Dahood argued, Anaconda, Montana

For Respondent:

Hon. Mike Greely, Attorney General, Helena, Montana
Chris Tweeten argued, Asst. Attorney General, Helena
Harold F. Hanser, County Attorney, Billings, Montana

---.-----.-

Submitted: September 12, 1983
~ecided: December 12, 1983
The Hon. Chan Ettien delivered the Opinion of the Court.

The defendant, Thomas Van Haele, appeals from his
conviction of aggravated assault, a felony, in the District
Court of the Thirteenth Judicial District, Yellowstone
County. We affirm the conviction.
The incident leading to Van Haele's arrest and ultimate
conviction occurred on the premises of Shur-gard Mini
Storage, a rental warehouse business in Billings, Montana.
At closing time on July 31, 1981, Van Haele, using the alias
"Bill Hayes," appeared at the gate leading into the storage
buildings and asked if he could have access to his cubicle
for approximately five minutes. Robert Westfall, who managed
the business with his wife, Mae, agreed to let Van Haele in,
and in return, Van Haele gave him five dollars.
The Westfalls had earlier allowed another tenant and
friend of theirs, Tim Bender, onto the premises and had given
him permission to lock up when he left. Now that Van Haele
was also on the premises, Mae Westfall went to find Bender
and tell him not to lock the other tenant in. She found
Bender and asked him if he had seen the other tenant. Bender
replied "yes," and told her where Van Haele's cubicle was
located. Then, wanting to tell Van Haele to hurry, she went
to find his cubicle.
Mae Westfall testified that as she approached Van
Haele's cubicle she noticed the padlock had been removed from
the door but the door itself was shut. She knocked on the
door and said, "hey you." There was no response, so she
knocked on the door again and hollered, "hey you in there."
Again there was no response and she opened the door. She
then saw Van Haele "sitting on the floor with a gun in my
face." She got behind the door and Van Haele came out of the
cubicle.
At this time, Bender, who had followed Mae Westfall to
Van Haele's cubicle, asked to look at the gun to see if it
was loaded. Van Haele replied, "you're damned right it's
loaded" and Bender attempted to grab the gun. When he could
not easily disarm Van Haele, Bender left and returned to his
own cubicle. Mae Westfall had already fled the area.
Van Haele stopped by the office as he was leaving and
attempted to speak to Mae Westfall but was told by Robert
Westfall that she refused to see him.
On August 11, 1981, the county attorney's office filed
charges against Van Haele for aggravated assault. He
appeared before the court the same dav and pled not guilty.
Trial began on November 10, 1981, and the iury convicted Van
Haele. He was sentenced to serve ten years in the Montana
State Prison with five years suspended.
Van Hael-e presents the following issues on appeal:
1. Whether the evidence presented at trial is
sufficient as a matter of law to warrant and sustain the
verdict of guilty of aggravated assault.
2. Whether the District Court erred in refusing
defendant's instruction explaining the defense of reasonable
doubt and failure of the prosecution to establish the
requisite proof.
3. Whether the sentence of ten years should be set
aside and a new hearing on sentence be conducted since the
trial court considered the conviction and fifteen year
sentence of Thomas Van Haele for the crime of possession of
dangerous drugs with intent to sell which arose out of the
instant case and which was reversed by this Court on August
23, 1982 (See State v. Van Eaele (Plont. 1980), 649 P.2d 1311,
39 St.Rep. 1586).
With regard to the first issue, Van Haele contends that
the evidence fails as a matter of 1.aw to support the jury
verdict of guilty on the charge of aggravated assault. More
specifically, he contends that: 1) the evidence fails to
show that Mae Westfall was placed in reasonable apprehension
of serious bodily injury as a result of his actions; and 2)
the evidence fails to show that he acted purposely or
knowingly in causing that result.
Van Haele contends that Mae Westfall was not fearful or
apprehensive when she opened the door and saw him with a gun
because she immediately said, "what the hell are you doing
with that gun?" In addition, he points out that she did not
scream or cry for help.
As for his own actions, Van Haele contends that he was
in his cubicle when the door was suddenly opened, surprising
him. He contends that he did not knowingly or purposely
point the gun at any person, but because of the height of the
cubicle, only four feet, he was forced to be in a stooped
position, and in exiting from a kneeling position, it may
have appeared that he pointed the gun at Mae Westfall.
The State contends that the jury duly consid.ered the
conflicting evidence presented to them in relation to whether
Mae Westfall was placed in reasonable apprehension and
whether Van Haele acted purposely or knowingly, and that they
weighed this evidence before reaching their verdict.
Therefore, they contend that this Court should be reluctant
to substitute its judgment for that of the jury.
It has been recognized by this Court as a fundamental
rule of law that questions of fact must be determined solely
by the jury, and that given a certain legal minimum of
evidence, this Court, on review, will not substitute its
judgment for that of the jury. State v. Pendergrass (1978),
179 Mont. 106, 118, 586 P.2d 691, 697-8; State v. Merseal
(1975), 167 Mont. 412, 415, 538 P.2d 1366, 1367-8, and cases
cited therein.
The standard of legal sufficiency is whether the verdict
is supported by substa.ntia1 evidence. Substantial evidence
is "such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion." In reviewing the
evidence to determine whether substantial evidence exists,
this Court will view the evidence in the light most favorable
to the State. Pendergrass, 179 Mont. at 118; Merseal, 167
Mont. at 415-6.
At trial, the State produced testimony that Mae Westfall
opened the door to Van Haele's cubicle and found a loaded .38
pistol pointed at her face from a dista.nce of one foot away.
Mae Westfall testified that she was scared and that she felt
terrible as she was looking at the gun, so terrible, in fact,
that she couldn't even move.
Van Haele, on the other hand, never offered Mae Westfall
an innocent explana.tion for his conduct when he had the
chance to do so. When Mae Westfall asked him what he was
doing with a gun, his only reply was, "who in the hell are
you?" In addition, when Van Haele stopped at the office on
his way out, Robert Westfall testified that Van Haele's
attitude was not contrite, but rather was "belligerent."
Although Van Haele testified that he did not
intentionally point the gun a.t Westfall, and that he had no
intention to frighten her, the jury was free to consider all
evidence presented and to pick and choose which of the
witnesses it wished to believe. State v. Swazio (1977), 173
Mont. 440, 445, 568 P.2d 124, 127, citing State v.
Fitzpatrick (1973), 163 Mont. 220, 226, 516 P.2d 605, 609.
The jury may also use circumstantial evidence to determine
the existence of a particular mental state. That is, thev
may infer the mental state from what the defendant does and
says and from all the facts and circumstances involved.
State v. Pierce (Mont. 19821, 647 P.2d 847, 850-51, 39
St-Rep. 1205, 1209. Based on the foregoing principl-es, we
find that the record contains substantial evidence to support
the jury's finding that Van Haele purposely or knowingly
caused Mae Westfall reasonable apprehension of serious bodily
injury.
In conju-nctionwith this issue, Van Haele contends that
even if this Court should find substantial evidence to
support the jury's verdict, the conviction is still improper
as a matter of law. Van Haele argues that under section
45-3-104, MCA, he had a right to use force to defend his
property. However, a scrutiny of the record reveals that the
issue of justification was never raised at the trial level.
It is a well settled rule that on appeal, this Court
will consider for review only those questions raised in the
trial court. State v. Campbell (Mont. 1981), 622 P.2d 200,
38 St.Rep. 19; State v. Armstrong (1977), 172 Mont. 552, 562
P.2d 1129. As the issue was not raised in the trial court,
we will not consider it further on appeal.
As his next issue, Van Haele contends that his proposed
instruction no. 7 explaining reasonable doubt and the
prosecution's burden of proof should have been given to the
jury. Van Haele contends that the instruction was necessary
in order for the jury to understand his defense based on the
failure of the prosecution to establish the requisite proof.
The State contends that the instruction was properly
refused by the trial court in that: 1) the last sentence of
the instruction told the jury "unless you find beyond a
reasonable doubt that the defendant is - guilty of the
not
offense charged, your verdict should he 'not guilty;'" which
is an incorrect statement of law, and; 2) the substance of
the refused instruction was covered by other instructions
given by the court, so that the defendant Is ability to argue
his theory to the jury was not impaired. (Emphasis added.)
This Court has consistently held that the District Court
need not give repetitious instructions nor instruct on every
nuance of a theory of defense. State v. Graves (Mont. 1981),
622 P.2d 203, 210, 38 St.Rep. 9, 16, and cases cited therein.
The court gave nine instructions discussing burden of proof
and presumption of innocence, including instructions that the
State was required to prove every element of the charge; that
the prosecution bore the burden of proof; that the defendant
is presumed innocent; and that in case of reasonable doubt
the defendant is entitled to an acquittal. The important
elements of the refused instruction were contained in the
other instructions given by the District Court, therefore it
was not error for the District Court to refuse Van Haelels
proposed instruction no. 7 or a corrected version of the
instruction.
Finally, Van Haele contends that the District Court
erred in considering a drug charge on which he had been
convicted, but was later reversed by this Court in State v.
Van Haele (Mont. 1982), 649 P.2d 1311, 39 St-.Rep. 1586. Van
Haele cites State v. Olsen (Mont. 1980), 614 P.2d 1061-, 37
St.Rep. 1313, where this Court held that a defendant is
entitled to have his sentence pred-icated on substantially
correct information, and where improper matters are
considered by the sentencing court, a defendant has a right
to be resentenced. However, this Court has also recognized
that if it is obvious from the record that the judge did not
rely on the infirm conviction and the sentence would not have
been different had the judge disregarded the prior
conviction, this Court will find no prejudice to the
defendant. Fitzpatrick v. State (Mont. 1981), 638 ~ . 2 d
1002,

At sentencing, the District Court stated:
"So far as the charge of which you were found
guilty in this Court, you have been sentenced on
that drug charge and I think that sentence must
stand on its own in that particular case."
The court made no further reference to the drug case.
The judgment reflects that the court based its sentence
on the facts set forth in the presentence report, the
defendant's past history, and his chemical dependency, not
the drug conviction. Therefore, we find no prejudice to Van
Haele and his sentence is upheld.
The judgment and. sentence are affirmed.

District. Jud.ge, Sitting
for Mr. Justice Frank B.
Morrison., Jr.
W e Concur:

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C h i e f Jus'tkce

Justices

Mr. J u s t i c e J o h n C. Sheehy d i s s e n t s and w i l l f i l e a w r i t t e n
dissent later.
 IN THE SUPREME COURT OF THE STATE OF MONTANA

82-481

THE STATE OF MONTANA,

Plaintiff/Respondent,

VS.

THOMAS VAN HAELE,

Defendant/Appellant.

DISSENT OF MR. JUSTICE JOHN C. SHEEHY

Opinion filed: December 12, 1983

Dissent filed: January 11, 1984

CLERK OF SUPREME COURT
SPATE OF MONTANA
Justice John C. Sheehv dissenting:
On January 26, 1981, Thomas Van Haele, under the nane of
Bill Hayes, entered into a written rental agreement with
Shurgard Mini Storage, at 5504 King Ave. East, near Billings,
Montana. The subject of the rental was a storage unit in one
of the buildings of Shurgard. The unit itself was small in
dimensions, 5 feet by 5 feet in floor area and about 4 feet
in height. Such cubicles are used for the storage of
personal property.
The rights of Shurgard (landlord) and Van Haele (tenant)
are defined by the written rental agreement. It is aareed in
the instrument that Shurgard is not engaged in storing goods
or operating a warehouse, but is "simply a landlord renting a
storage unit in which tenants can store items of personal
property owned by tenants." It is further provided that
"1andl.ord will not maintain supervision or control over the
storage unit rented herein, but said unit is under the
exclusive control of tenant and tenant must take whatever
steps are necessary to safeguard whatever property is stored
in the unit." It is the duty of the tenant to buy a lock if
he wishes to maintain a locked unit. The landlord has a
right to inspect the unit but even that is fenced around:
"Tenant will allow landlord free access at all reasonable
times to the unit for the purpose of inspection, making
repairs, additions or alterations to the unit that may be
required under the landlord ' s obligations contained" in the
instrument.
The written agreement contains no provisions that fix or
limit the times at which the tenant can come to the storage
unit for whatever purposes he may have.
 I t i s o b v i c u s t h a t Shurgard and Van Haele e n t e r e d i n t o a

c o n t r a c t of h i r i n g . T h i s i s a c o n t r a c t by which one g i v e s t o

a n o t h e r t h e temporary p o s s e s s i o n and u s e o f p r o p e r t y , other

t h a n money, f o r reward, and t h e t e n a n t a g r e e s t o r e t u r n t h e

same t o t h e l a n d l o r d a t a f u t u r e time. S e c t i o n 70-1-601,

MCA. I n such c o n t r a c t s , a s a m a t t e r of s t a t u t e , t h e l a n d l o r d

h i n d s h i m s e l f " t o s e c u r e t o t h e h i r e r t h e q u i t e p o s s e s s i o n of

the thing hired." S e c t i o n 70-1-602, MCA.

Mae F r a n c e s W e s t f a l l , and h e r husband Robert F. W e s t f a l l

apparently were hired as caretakers by Shurgard for the

r e n t a l u n i t premises. A s a r e p r e s e n t a t i v e of the landlord,

M r s . W e s t f a l l ' s o n l y r i g h t t o e n t e r t h e c u b i c l e r e n t e d t o Van

Haele was f o r t h e r e a s o n s l i s t e d i n t h e agreement, for the

purpose of inspection, or t o make a l t e r a t i o n s or repairs.

She had no right to enter for any other purpose. She

t h e r e f o r e had t h e s t a t u s o f an i n t e r l o p e r when s h e opened t h e

d o o r o f t h e c u b i c l e , w h i l e Van Haele was i n s i d e , t o f i n d him

c r o u c h i n g i n s i d e w i t h a gun i n h i s hand. H e had t o c r o u c h ;

t h e h e i g h t of t h e c u b i c l e would n o t p e r m i t s t a n d i n g up.

T i m Bender was p r e s e n t when t h e Mae W e s t f a l l came t o Van

Haele's cubicle. Each of them t e s t i f i e d t h a t t h e s h e knocked

on t h e d o o r 2 o r 3 t i m e s , t h a t t h e r e was no answer and t h a t

s h e t h e r e u p o n opened t h e d o o r which w a s unlocked. When s h e

opened t h e d o o r , t h e d e f e n d a n t was i n s i d e hol-ding a handgun

and it was p o i n t e d a t M r s . W e s t f a l l . Bender c l a i m e d he waved

it a t him a l s o . When Van Haele came o u t o f the cubicle,

Bender grabbed t h e arm t h a t h e l d t h e gun and t r i e d t o w r e s t l e

t h e gun away from Van H a e l e , b u t he was u n a b l e t o do s o . So

Bender l e t go of Van H a e l e ' s arm and went back t o h i s own

bin. Van Haele t h e r e u p o n l e f t t h e b u i l d i n g .
 Upon opening the door, Mae Westfall immediately said to
Van Haele, "What in hell are you doing with that gun?" He
responded, "Who in hell are you?"
The only testimony as to any effect upon Mae Westfall
was that she was "scared." She left the premises
immediately.
It is upon this evidence that the defendant has been
convicted of felonious aggravated assault.
Under section 45-5-202, the defendant is guilty of
aggravated assault only if he purposely or knowingly caused
reasonable apprehension of serious bodily injury in Mae
Westfall by use of a weapon. Van Haele would be justified in
the use of threat of force against her to the extent that he
reasonably believed that such was necessary to prevent or
terminate her unlawful entry into his occupied structure,
section 45-3-103, MCA.
Jn my opinion, the evidence fails completely to
establish an offense of aggravated assault. Van Haele could
only have acted purposely if it was his conscious object to
raise reasonable apprehension of serious bodily injury in Mae
Westfall by use of the weapon. Section 45-2-101(15), MCA.
He could act "knowingly" with respect to aggravated assault
if he was aware that his conduct would raise in her a
reasonable apprehension of serious bodily injury. The proof
is totally lacking in these two aspects.
It is further lacking in any testimony that Mae Westfall
was in fear of serious bodily injury. She did not so
testify.
It would be improper to convict Van Haele simply because
he was standing or crouching in his cubicle, while holding a
gun. He has a constitutional right to keep or bear arms in
defense of his own home, person and property, which right may
not be called into question, Article 11, section 12, ( 1 9 7 2 )

Mont. Constitution.
In my opinion, this incident was ballooned a l l out of
proportion and the sentence imposed is harsh in the extreme.