NO. 84-273
I N THE SUPREME COURT O THE STATE O MONTANA
F F
1984
STATE O F MONTANA,
P l a i n t i f f and R e s p c n d e n t ,
-VS-
LEROY H . LEMMON,
Defendant and A p p e l l a n t .
APPEAL FROM: D i s t r i c t C o u r t of t h e Tenth J u d i c i a l D i s t r i c t ,
I n and f o r t h e County of F e r g u s ,
The Honorable P e t e r L. Rapkoch, J u d g e p r e s i d i n g .
COUNSEL O RECORD:
F
For A p p e l l a n t :
Moses Law F i r m , B i l l . . i n g s , Montana
F o r Respondent:
Hon. 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
C r a i g R. B u e h l e r , County A t t o r n e y , Lewistown, Montana
John R. C h r i s t e n s e n , Deputy County A t t y . , S t a n f o r d ,
Montana
S u b m i t t e d on B r i e f s : Sept. 2 0 , 1984
Decided: December 1 3 , 1984
Clerk
Mr. Justi.ce John C. Sheehy delivered the Opinion of the
Court.
This is an appeal by Leroy H. Lemmon from a judgment and
sentence in the Tenth Judicial District Court, Fergus C0unt.y.
On March 1, 1983, an information was filed alleging two
c0unt.s of aggravated assault, two counts of aggravated
kidnapping and one count of solicitation. One charge of
aggravated assault and one charge of kidnapping were dropped.
On February 23, 1984, after a two day jury trial, Lemmon was
found guilty of the lesser-included misdemeanor offenses of
simple assault and unlawful restraint. He was sentenced to
two consecutive six-m0nt.h terms in the Fergus County jail
with all but 90 days suspended.
1,emmon raises four issues on appeal:
1) the county attorney abused his prosecutorial
discretion;
2) the evi.d.ence is insufficient to support the jury
verdict because criminal. intent was not established and
because Lemrnon's conduct was in connection with an arrest and
authorized by statute;
3) the District Court's failure to give two proposed
instructions was reversible error; and,
4) the sentence was excessive.
Because no issue has merit the trial court judgment and
sentence are affirmed.
The crime occurred during what appellant's attorney
characterizes as an "unfriendly divorce." Lemmon and the
victim, divorced in August 1983 after a 20-year marriage.
Lemmon considers it crucial to his defense that Koralyn
Lemrnon.'~
attorney in the divorce proceedings was an assistant
Deputy County Attorney. On February 13, 1983, the date of
the crime, the couple were separated but both lived in
Lewistown, Montana. On the 13th Koralyn Lemmon spent time
with John Sweeting; the appellant was with Donna Myers.
Sweeting and Myers had recently ended a personal and business
re1 ationship.
John Sweeting asked Koralyn Lemmon to retrieve a
briefcase from appellant's truck which was locked and parked
on a 1,ewistown street. She testified Sweeting led her to
believe it was his briefcase. The briefcase actually
belonged to Myers and contained paperwork concerning marj tal
finances, allegedly threatening letters from Sweeting to
Lemmon, and approximately 200 photographs of Meyers. Koralyn
Lemon, using her key, unlocked the truck and took the
briefcase. Though she was cited for misdemeanor theft the
charge was later dropped.
Returning to his truck, accompanied by Meyers, Lemmon
realized the briefcase was gone and concluded his wife had
taken it because no one had broken into the truck. Re claims
these facts gave him reasonable grounds for concluding a
felony had occurred. It is crucial to his defense that he
was a member of the Ferqus County Sheriff's Posse.
He and Meyers went to Koralyn Lemon's home. Koralyn
Lemmon, hearing them drive up, tucked a gun into her
waistband. Though their versions of the incident are very
different, IleRoy and Koralyn Lemmon fought and he struck her
on the head with the gun. She ended up in Lemrnon" truck
bleeding, face down on the seat, her body on the floor, and
her arms pinioned by Yeyers. Lemrnon characterizes this
sequence as necessary force in the course of an arrest.
He drove to the sheriff's department and spoke to the
dispatcher, hut no sheriff was present or immediately
available. His son arrived and was instructed to wait there.
J,eaving the sheriff's department, Lemmon, Meyers, and Mrs.
T,emmon, still held face down in the truck, drove around
Lewistown looking for Sweeting and the briefcase.
They found his vehicle and began a chase. The vehicles
rammed together and gunshot was exchanged. The chase ended
when Lemon's transmission caught fire; they then returned to
the sheriff's department. The charges resulting from this
incident were dropped.
Zt
i 9:00 p.m. the dispatcher located a sheriff who
arrived at the station at 9: 15 p.m. When Lemmon returned to
the station the sheriff assisted Mrs. Lemmon. She was taken
to the hospital where she remained for two days.
The briefcase was found on the roadside and returned to
Myers. Sweeting left Lewistown and did not testify.
Issue No. 1.
- - Was there abuse of prosecutoria-l
discretion?
L e m o n asserts ahuse of discretion hecause the county
attorney did not act on complaints L e m o n filed against
Koralyn L e m o n and the County Attorney's office was not
disqualified although the deputy county attorney represented
Koralyn L e m o n in her divorce. T,emon is confusing two
separate issues--abuse of prose~utoria~
discretion and denial
of his motion to disqualify.
Abuse - Prosecutorial Discretion
of
A claim of abuse of prosecutorial discretion is grounded
on Fourteenth Amendment. The abuse of discretion issue was
not raised at the tria.1 court and will not be considered here
hased on section 46-20-702, MCA. Lemmon does not have the
right to raise the issue and this Court does not have the
record to review it. Section 46-20-702, MCA, states:
"Any error, defect, irregularity, or variance which
does not affect substantial rights shall be
disregarded. No claim al-leging an error affecting
iurisdictional or constitutional rights may be
noticed on appeal, if the alleged error was not
objected to as provided j n 46-20-104, unless the
.
defendant establishes that the error was
prejudicial as to his guilt or punishment and that:
"(1) the right asserted in the claim did not exist
at the time of the trial. and. has been determined to
be retroactive in its application;
"(2) the prosecutor, the judge, or a law
enforcement agency suppressed evidence from the
defendant or his attorney that prevented. the claim
from being raised and. disposed of; or
"(3) material and controlling facts upon which the
claim is predicated were not known to the defendant
or his attorney and could not have been ascertained
by the exercise of reasonable diligence."
None of the exceptions apply to this situation. Therefore
the issue will not be considered on appeal.
We note in passing that even if the issue were raised at
trial the appeal would be denied. Based on the facts in the
record of this case Lemmon could not establish prosecutorial
abuse.
"In our system, so long as the prosecutor has
probable cause to believe that the accused
committed an offense defined by statute, the
decision whether or not to prosecute, and what
charge to file or bring before a grand jury,
generally rests entirely in his discretion. Within
the limits set by the legislature's
constitutionally valid definition of chargeable
offenses, 'the conscious exercise of some
selectivity in enforcement is not in itself a
federal constitutional. vj olationl so long as ' the
selection was [not] deliberately based upon an
unjustifiable standard such as race, religion, or
other arbitrary classification.' (Citing cases.)"
Bordenkircher v. Hayes (1978), 434 U.S. 357, 364,
98 S.Ct. 663, 54 L.Ed.2d 604, 611.
Eenial - Motion - Disqualify
of to
Lemmon moved to disqualify the Fergus County Attorney's
office because a deputy county attorney, who office-shares
with the county attorney in his private practice, represented
Koralyn Lemmon in the divorce. If conflict were established
there be a fair trial question but the District Court
properly denied Lemon's motion to disqualify hecause these
facts do not establish conflict of interest or abuse of
discretion.
Lemmon based his motion on DR 5-105(D):
"If a 1-awyer is required to decline employment or
to withdraw from employment under DR 5-105, no
partner or associate of his or his firm may accept
or continue such employment."
Kerely reciting a rule does not establish a violation. No
evidence was introduced establishing conflict of interest.
Tt was not established that the county attorney would have
been disqualified from the criminal. prosecution of Lemmon if
he had represented Koralyn L e m o n in the divorce let alone
that. the county attorney must be disqualifies because the
deputy county attorney represented Mrs. Lemnon. We also
note, in passing, that Canon. 5 concerns conflicts in
representation not prosecution.
Issue - - 2.
No. Was there sufficient evidence to establish
criminal intent or Lemon's defense of reasonable force in
the course of a lawful arrest?
Lemmon argues the evidence of intent was insufficient to
support the verdj-ct and the evidence established a defense
that he had reasonable grounds to arrest and his conduct was
authorized by statute. The standard this Court uses in
revi.ewi.ngthe sufficiency of evidence in a jury trial is "it
is well-established that questions of fact must be determined
solely by the jury and that given a certain legal minimum of
evidence, this Court will not substitute its judgment."
State v. Martinez (Mont. 1980), 613 P . 2 d 974, 980, 37 St.Rep.
982, 989. Applying this standard both arguments are entirely
meritless.
Intent
Lemmon argues "evil. mind" is a necessary factor of
intent and the statutory definitions of knowingly and.
purposely a-re unconstitutional because they do not include
the require~.ent "evil mind."
of This Court has held. that, by
definition, "knowingly" or "purposely" encompassed the
necessary scienter. ' [TIhe
I necessary requirements for
'mens real and 'criminal. intent' are embodied in the use of
the new language of the statute 'purposely' and 'knowingly.'"
State v. Sharbono (1977), 175 Mont. 373, 392-393, 563 1?.2d
Lemmon a.lso argues that evidence must prove he intended
to "beat her, hit her, or strike her." While the record
contains sufficient evidence to convince the jury this was
his intent, the prosecution does not have to prove specific
int.ent. This argument has also been addressed by this Court.
"The fatal flaw in defendant's argument is that
aggravated assault is not a specific intent crime.
Aggravated assault is defined by section
45-5-202(1), MCA, as follows:
"A person commits the offense of aggravated assault
if h.e purposely or knowingly causes:
"a) serious bodily injury to a-nother; [or]
"b) bodily injury to another with a weapon . . ."
The legislature did not intend to require any other mental
state in addition to 'purposely' or 'knowingly.'" State v.
Howard (Mont. 1981), 637 P.2d 15, 18, 38 St.Rep. 1980,
Conduct Authorized 2 Statute
Lemmon's argument that a statutory defense exists
because he was a member of the Fergus County Sheriff's Posse
is irrelevant. Vigilante days are over in Montana. His
membership in the posse made him merel-y an auxiliary officer
as defined by section 7-32-201(1), MCA:
"'Auxj-liary Officer' means an unsworn, part-time,
volunteer member of a law enforcement agency who
may perform but is not limited to the performance
of such functions as civil defense, search and.
rescue, office duties, crowd and. traffic control
and crime prevention activities."
Auxiliary officers have very limited authority. Section
7-32-232, MCA, states:
" (1 ) Auxiliary officers:
" (a) are subordinate to full-time law enforcement
officers; and
" (b) may not serve unless supervised & 2
ful.1.-time law enforcement officer.
"(2) No auxiliary officer may carry a weapon while
on asszned duty. " (Emphasis added. ) -
-
Section 7-32-233, MCA, states:
"An auxiliary officer has only the arrest authority
granted a private person in section 46-6-502 and
46-6-503."
As an auxiliary officer's arrest authority is no greater
than that of a private citizen, Lemmon's membership in the
posse is irrelevant a.nd section 46-6-502, MCA, controls.
Section 46-6-502 states:
"A private person may arrest another when:
"(1) he believes on reasonable grounds that an
offense is being committed or attempted in his
presence ;
"(2) a felony has in fact been committed and he
believes on reasonable qrounds that the person
arrested has committed it; or
"(3) he is a merchant, as defined in 30-11-.301,
and has probable cause to believe the other is
shoplifting in the merchant's store."
Lemmon meets none of these criteria--no offense was committed
in his presence, no felony was committed, and he is not a
merchant. He had neither authority to arrest the victim nor
reason to believe he did.
Issue - - 3.
No. Was the District Court's Refusal of LSury
Tnstructions Reversible Error?
Lernmon appeals the refusal of two proposed iury
i-nstructions. In reviewing jury instruction "[tlhis Court
must look at jury instructions as a whole to determine if
they fully and fairly present the appl-icable law of the
case.'' State v. Johnson (Mont 1982), 646 P.2d 507, 512, 39
St.Rep. 1014, 1020.
Applying this standard the trial court correctly refused
the proposed instructions. Instruction no. 16, on
conjecture, although correct, was redundant. Instruction no.
38 is section 45-2-103(4) ( d ) , MCA. It does not state law
applicab1.e to this case because Lernmon had no statutory
defense and because the statute does not apply to this
situation. Section 45-2-103 (4)(d), MCA, deals with reliance
on official interpretations by public officers or agencies.
No such interpretation exists.
Issue No. 4.
-- Is the Sentence Excessive?
"This Court has consistently held that if a sentence is
within the limits provided by statute, it is not an abuse of
discretion." State v. Garrido (Mont. 1981), 621 ~ . 2 d1105,
1108, 38 St.Rep. 78, 80. Lernmon was convicted of simple
assault and unlawful restraint, both punishable by up to six
months in the county jail and a $500 fine (sections
45-5-201 (2) and 45-5-301 (2)) . He was sentenced to two
consecutive 6 month terms with all but 90 days suspended.
The trial court did not abuse its discretion.
The judgment and sentence of the trial court is
a£firmed.
';yLh. y&Ji
L
Justice
We Concur: