No. 86-487
IN THE SUPREME COURT OF THE STATE OF MONTANA
STATE OF MONTANA
Plaintiff/Respondent,
VS.
LARRY KAY SMITH
Defendant/Appellant,
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula
The Honorable John S. Henson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
O'BRIEN & CONRAD; James P. O'Brien,
Missoula, Montana,
For Respondent:
Honorable Mike Greely, Attorney General,
John Paulson, Assistant Attorney General,
Helena, Montana,
Robert L. Deschamps, 111, Missoula County Attorney,
Missoula, Montana.
Submitted on Briefs: June 25, 1987
Decided: September 3, 1987
Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
Defendant, Larry K. Smith, appeals a jury verdict con-
victing him of aggravated kidnapping in the Fourth Judicial
District, Missoula County. Defendant also appeals the sen-
tence imposed. We affirm. The issues are:
1. Is the evidence sufficient to sustain Mr. Smith's
conviction of aggravated kidnapping?
2. Were the District Court's instructions adequate?
3. Did the District Court abuse its discretion by not
applying the reduced penalty provisions of 5 45-5-303(2),
MCA, when sentencing the defendant?
The following uncontradicted facts come from the State's
case-in-chief. At approximately 12:30 a.m. on the night of
February 28, 1986, the victim, a 20-year-old University of
Montana sophomore, and a friend walked from their dormitory
to Luke's Bar in downtown Missoula. Later, when they left
the bar they met the defendant, Mr. Smith, who was seated on
a three-wheel motorcycle.
In the course of conversation, Mr. Smith asked the
victim if she would like to go for a ride on his motorcycle.
The victim eventually assented, generally agreeing to a "ride
around the block" because it sounded like fun.
The victim got on the passenger seat. Rather than drive
around the block, Mr. Smith drove south for several blocks,
then made a U-turn and drove north again. Upon approaching
the bridge over the river, Mr. Smith drove down toward the
river where a restaurant is located. The victim admitted
that she began to be concerned at that point, but she assumed
Mr. Smith would turn around in the parking lot. Mr. Smith
proceeded, however, past the restaurant to the end of the
parking lot, then further west past the parking lot on a dirt
path. As they continued west along the path, they drove
underneath a traffic bridge and stopped.
Mr. Smith, a paraplegic, turned his body to the right,
lifted or threw his left leg over the bike and grabbed the
victim's wrists. He ordered the victim to get off of the
motorcycle. When she was standing in front of him, Mr. Smith
pulled her toward himself as if to kiss her. The victim
pulled away and told Mr. Smith, "No."
The victim testified that at that point Mr. Smith
"seemed very anxious -- very angry and very agitated." He
either lowered himself to the ground while still holding the
victim's wrists firmly or the victim pulled away and he fell
to the ground. He tried to pull the victim down to the
ground, but she jerked away and turned to run. Mr. Smith
caught the victim's left leg, pulling her to her knees on the
ground. A medical doctor and Mr. Smith's girlfriend both
testified that Mr. Smith was very strong in his upper body.
He grabbed the victim's hair and began hitting her, calling
her a "bitch" and a "whore". The following is a portion of
the victim's testimony:
Q. Okay. You say you were on your knees. Can you
describe for the jury how he was hitting you?
A. He was hitting me very sharply in the back of
the head with his fists. And then he was -- he was
hitting me, like, with karate chops to the back of
the neck, very strong, very hard blows.
Q. And what was he telling you to do?
A. Kept telling me to get my face in the dirt.
Told me if I didn't keep my head down, he was going
to hit me in the back of the head with a rock and
cut off my head and cut off my hair.
Q. What did you do then?
A. I put my face down in the dirt.
Q. About how many times do you think he gave you a
karate chop?
A. Oh, probably six to seven times.
Q. Can you tell us how it felt?
A. It was very painful. It was so hard that I
felt as though I might pass out, and I was, you
know, seeing stars. And so I tensed up as hard as
I could to resist the blows.
When the victim's face was in the dirt, Mr. Smith re-
leased his hold on her and scooted toward his motorcycle.
The victim testified that she thought he was reaching into
his motorcycle to get something. She used this opportunity
to get up and run away from Mr. Smith. She ran some distance
to a footbridge which crosses a ditch. She ran across that
footbridge and up to a residential street. The victim was
afraid Mr. Smith might find her again so she kept running,
eventually hiding behind a bush until certain he was driving
in the opposite direction.
Mr. Smith was convicted of aggravated kidnapping. The
District Court, upon adjudging Mr. Smith a dangerous offend-
er, sentenced him to 20 years in the Montana State Prison.
I
Is the evidence sufficient to sustain Mr. Smith's con-
viction of aggravated kidnapping?
Section 45-5-303(1), MCA, reads in part:
A person commits the offense of aggravated kidnap-
ping if he knowingly or purposely and without
lawful authority restrains another person ... by
using or threatening to use physical force, with
any of the following purposes:
(c) to inflict bodily injury on or to terrorize the
victim or another ....
Mr. Smith argues this as a "specific intent" crime. In
labelling the offense as such, Mr. Smith claims the prosecu-
tion must prove he had some "future mental state" to inflict
bodily injury on or to terrorize the victim. Mr. Smith
argues that this intent may not be inferred from his acts.
The language used when discussing mental state should be
chosen cautiously to avoid confusion. The distinctions
between "general" and "specific" intent were abandoned when
the Montana Criminal Code was adopted. State v. Howard
(1981), 195 Mont. 400, 407, 637 P.2d 15, 19.
The initial mental state which the State must prove is
that the defendant knowingly or purposely restrained another
person. The State also must prove that the defendant re-
strained the victim with the purpose "to inflict bodily
injury on or to terrorize the victim . I1
S 45-5-303 (1) (c), MCA. Contrary to Mr. Smith's argument,
proof of this additional mental state does not require proof
of a "specific intent" as found under common law, but, rath-
er, requires proof of "purpose" as statutorily defined.
Mr. Smith argues that the State failed in its burden to
prove beyond a reasonable doubt that he had the purpose to
inflict bodily injury on or to terrorize the victim. Mr.
Smith's argument is based on his incorrect assumption that
this purpose may not be inferred from his acts. Section
45-2-103 (1), MCA, states:
(1) A person is not guilty of an offense, other
than an offense which involves absolute liability,
unless, with respect to each element described by
the statute defining the offense, he acts while
having one of the mental states described in sub-
sections (33). (37). and (58) of 45-2-101.
. ., . .. . . -
The
existence of a mental state may be inferred from
- - - connected with - - fycts and circum-
the acts -r tEe accused and the
stances
o
(Emphasis
- - offense.
the
added. )
Section 45-2-101(58) defines "purpose" or "purposely":
[A] person acts purposely with respect to a result
or to conduct described by a statute defining an
offense if it is his conscious object to engage in
that conduct or to cause that result ....
These statutes, read together, show that a defendant's pur-
pose or conscious object may be inferred from his acts as
well as from the facts and circumstances of the offense. The
State was required to show that Mr. Smith knowingly or pur-
posely restrained the victim with a purpose to inflict bodily
injury on or to terrorize her. The fact that an additional
mental state or "purpose" must be shown does not bar the
trier of fact from inferring such purpose from the acts of
the defendant and the facts and circumstances of the offense.
Howard should not be read to reassert the common law distinc-
tion between specific and general intent accompanied by the
differing schemes of proof, as Mr. Smith argues.
In the light most favorable to the State, when Mr. Smith
grabbed the victim by the wrists and later grabbed her by the
leg and pulled her to the ground by her hair, the jury could
reasonably conclude that Mr. Smith knowingly or purposely
restrained her. Further, the jury could reasonably conclude
from Mr. Smith's conduct that he restrained the victim for
the purpose of inflicting bodily injury on or terrorizing
her. The defendant threatened to cut the victim's hair and
head off, and in fact beat her on the head and neck
repeatedly.
The intent to restrain and the restraint, for any
of the enumerated purposes, are the facts the jury
must determine to establish an accused's guilt of
aggravated kidnapping. No additional facts need be
proved in order to constitute the crime.
State v. Stewart (1977), 175 Mont. 286, 300, 573 P.2d 1138,
1146.
Mr. Smith further asserts that the aggravated kidnapping
statute does not contemplate "momentary restraints which are
normally the subject of simple assaults." The statute re-
quires no specific proof regarding duration of restraint. If
a specific period of time were required, then a fortunate
escape by the victim, short of that specified length of time,
would cut short the defendant's liability regardless of
defendant's purpose and actions. Time is not the concern of
the statute, but, rather, concern is for violence, terror,
and danger while the victim is restrained. Model Penal Code
and Commentaries S 212.1 (1980) . Montana1s aggravated kid-
napping statute is based upon the Model Penal Code § 212.1
(1962), the official draft of which required restraining "for
a substantial period." As the State correctly points out,
the Criminal Law Commission and the Montana Legislature
expressly omitted that element. A specific period of re-
straint is not an element of the offense. We hold that
sufficient evidence exists in the record to support Mr.
Smith's conviction for aggravated kidnapping.
Were the District Court's instructions adequate?
Mr. Smith contends the District Court erred by giving
instructions 12 (definition of restraint) and 18 (withdrawal
of consent). He failed to object to instructions 12 and 18
at trial. Generally, instructions cannot be challenged for
the first time on appeal.
Mr. Smith argues that there is plain error involved
which allows us to review the instructions under the holding
in State v. Lundblade (Mont. 1981), 625 P.2d 545, 38 St.Rep.
441. In that case, we held that failure to give an instruc-
tion on the elements of the crime constituted plain error
under S 46-20-702, MCA (1981). Lundblade is no longer au-
thority under this theory because 5 46-20-702, MCA, was
amended in 1983 to read as follows:
Any error, defect, irregularity, or variance which
does not affect substantial rights shall be disre-
garded. No claim alleging an error affecting
jurisdictional or constitutional rights may be
noticed on appeal, if the alleged error was not
objected to as provided in 46-20-104, unless the
defendant establishes that the error was prejudi-
cial 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.
Mr. Smith has failed to establish that the claimed error was
prejudicial and that he meets one of the three qualifying
requirements of the section.
Mr. Smith also contends that the instructions can be
reviewed under State v. LaValley (1983), 203 Mont. 393, 661
P.2d 869. LaValley is not authority because there is no
present contention of ineffective assistance of counsel. We
conclude there was no error in giving instructions 12 and 18.
Mr. Smith next contends that three additional instruc-
tions should have been given. He argues that the trial court
failed to give an instruction defining force. No Montana
statute defines force as used in this instance. He argues
that a specific intent instruction was required; however, no
requirement by law has been established. Last, Mr. Smith
argues that it was error to omit a lesser included offense
instruction on unlawful restraint. He cites as authority
State v. Thomas (1966), 147 Mont. 325, 413 P.2d 315; State v.
Sotelo (Mont. 1984), 679 P.2d 779, 41 St.Rep. 568; State v.
Furlong (Mont. 1984), 690 P.2d 986, 41 St.Rep. 2096. Each of
these cases is distinguishable by the fact that in each case
the error cited by this Court was the trial court's denial of
defendant's proffered instructions concerning a lesser in-
cluded offense. In the case at bar, the defendant, Mr.
Smith, never offered an instruction on unlawful restraint as
a lesser included offense. He failed to present any of the
instructions to the trial court. "Before the trial court
will be put in error it must be given a chance to correct
itself." State v. Walker (1966), 148 Mont. 216, 223, 419
P. 2d 300, 304. We conclude there was no error in omitting
instructions concerning force, specific intent and unlawful
restraint.
Did the District Court abuse its discretion by not
applying the reduced penalty provisions of S 45-5-303 (2),
MCA, when sentencing the defendant?
When the District Court imposes a sentence for aggravat-
ed kidnapping, S 45-5-303(2), MCA, provides flexibility in
sentencing a defendant who (1) voluntarily releases the
victim, (2) in a safe place, and (3) not suffering from
serious bodily injury. If these three factors are satisfied,
the sentence may not exceed 10 years. Although the District
Court made no specific findings regarding these factors,
sufficient evidence exists in the record to support the
District Court's decision not to apply the reduced sentencing
provisions.
Mr. Smith argues that when he released his grip on the
victim and moved toward his motorcycle, his conduct consti-
tuted voluntary release. The record shows that the release
of Mr. Smith's grip on the victim was immediately preceded by
beatings and threats to cut off her head and threats to hit
her with a rock if she did not keep her head down. The
District Court certainly would be justified in refusing to
perceive this conduct as a voluntary release. The court also
would be justified in concluding, even assuming voluntary
release, that the victim was not released in a safe place.
The offense occurred under a dark overpass near the river at
approximately 2:00 a.m. The fact that the victim did eventu-
ally reach safety is not at issue. We hold that the District
Court did not abuse its discretion by refusing to apply a
reduced penalty pursuant to 5 45-5-303(2), MCA.
Af firmed.
Wg\ Concur :
Justices