No. 86-471
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
DAN LOUIS MATSON,
Defendant and Appellant.
APPEAL FROM: The District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Jack L. Green, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Cannon & Sheehy; Edmund F. Sheehy, Jr., Helena, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
John Paulson, Asst. Atty. General, Helena
Robert Deschamps, 111, County Attorney, Missoula,
Montana; Robert Slomski, Deputy County Attorney
Submitted on Briefs: Dec. 31, 1986
Decided: May 13, 1987
MAY 1 3 1988
Filed:
Clerk
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
Defendant Matson appeals a bench conviction for aggra-
vated assault in the Fourth Judicial District, Missoula
County. On August 21, 1986, Matson was sentenced to ten
years in prison, with all ten years suspended, and placed on
probation. We affirm the conviction.
Matson raises five issues for our review:
1. Does substantial evidence support Matson's
conviction?
2. Did the District Court abuse its discretion when it
denied Matson's motion to dismiss at the close of the State's
case?
3. Did the District Court abuse its discretion when it
allowed the State to amend its information after trial began
but before the verdict?
4. Did the District Court abuse its discretion when it
admitted evidence of prior acts by Matson?
5. Did Matson receive effective assistance of counsel?
Matson is thirty-seven years old and resides with his
parents on a six and one-half acre homesite in Seeley Lake,
Montana. On June 15, 1985, two chickens belonging to
Matson's neighbor flew onto Matson's property. Matson came
out of his house with a pistol in his hand. For the next few
minutes, Matson chased the chickens around his property until
they flew back to his neighbor's land. As he stood at his
fence, Matson waved the pistol and shouted at two neighbor
children, ages ten and eleven, to keep their chickens off his
property or "something will have to be done."
Issue 1
Does substantial evi-dence support Matson's conviction?
The court found Matson guilty of aggravated assault
against one of the children, as defined in 5 45-5-202(1) (c),
MCA (1983): "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. . ."
Matson contends that the evidence produced at trial was
insufficient to support his conviction, because the State
failed to prove that the children suffered reasonable appre-
hension of serious bodily injury.
Our standard. of review on issues of substantial evi-
dence is that a conviction cannot be overturned if the evi-
dence, when viewed in a light most favorable to the
prosecution, would allow any rational trier of fact to find
the essential elements of the crime beyond a reasonable
doubt. State v. Kutnyak (Mont. 1984), 685 P.2d 901, 910, 41
St.Rep. 1277, 1289. If events are capable of different
interpretations, the trier of fact shall determine which is
the most reasonable. State v. Atlas (Mont. 1986), 728 P.2d
421, 423, 43 St.Rep. 2042, 2044.
A careful review of the trial transcript convinces us
that the evidence fully supports Matson's conviction for
aggravated assault. The key elements of the crime are - rea-
sonable apprehension, serious bodily harm and use of a weap-
on.
- In their testimony, the neighbor children repeatedly
stated that Matson had a pistol in his hand, that Matson
pointed the pistol at them and that they were afraid they
would be shot. The victim of the aggravated assault, Jason,
testified to his fear:
Q. Was there anything special about
what he was doing with the gun that you
remember?
A. He cocked it.
Q. What were you thinking when that gun
was pointed at you?
A. I thought he was going to shoot me.
Q. How did that make you feel?
A. Real scared.
The other child who witnessed Matson's aggravated
assault was Jason's sister, Jennifer. She testified about
her fear and resultant nightmares, in which "I dreamed that
he shot me." Furthermore, Matson admitted that he shouted at
the children with a pistol in his hand:
Q. When you were standing at the raised
pistol position, did you yell at the
children at that time, or did you yell
at them when the pistol was in the
holster?
A. I already had intentions of putting
it in the holster. So as I yelled to
them I was already going to put it in
the holster. Its kind of a spontaneous
action. I thought it would do some
good, maybe, to tell them to keep the
chickens out or something will have to
be done.
However, Matson contends that the pistol in his hand
was only a pellet pistol and not actually a "weapon." We
note that section 45-2-101(71), MCA, defines "weapon" as "any
instrument, article, or substance which ... is readily
capable of being used to produce ... serious bodily inju-
ry." Serious bodily injury is defined as causing "protracted
loss or impairment of the function or process of any bodily
member or organ. " Section 45-2-101 (59), MCA. A pellet
pistol does not escape the purview of "weapon," because a
high-velocity pellet in the eye is certainly capable of
inflicting "serious bodily injury."
Furthermore, Matson's contention is directly rebutted
by the testimony of both Jason and Jason's father. When
Jason was shown Matson's pellet pistol, he was asked:
Q. What's the difference about this gun
compared to the one that was pointed at
you?
A. The other gun was silver, it had a
brown handle, and it had a shorter
barrel.
Jason's father also testified that he saw Matson hold-
ing a large caliber pistol, not a pellet pistol:
Q. How do you know it was a large
caliber pistol?
A. Well, I'm fairly familiar with
firearms enough to realize that the
length of barrel, the configuration of
the frame and so forth led me to believe
at that time that that was a large
caliber pistol.
In summary, the testimony of Matson himself, corrobo-
rated by three other witnesses, placed Matson in the immedi-
ate vicinity of the children, with an unholstered pistol in
Matson's hand. By his own admission, and corroborated by two
witnesses, Matson spoke menacing words to the children while
holding the pistol. This evidence, when combined with the
children's testimony that they feared they would be shot, was
sufficient to establish the elements of reasonable apprehen-
sion of serious bodily injury by use of a weapon. State v.
Van Haele (1983), 675 P.2d 79, 82, 40 St.Rep. 1964, 1967. We
hold that the evidence fully supports the court's conclusion
that Matson committed aggravated assault.
Issue 2
Did the District Court abuse its discretion when it.
denied Matson's motion to dismiss at the close of the State's
case?
Matson contends that the State failed to prove Matson
used a "weapon" and, therefore, the court should have granted
his motion.
We review this issue under the provisions of
§ 46-16-403, MCA, which states:
When, at the close of the state's evi-
dence or at the close of all the evi-
dence, the evidence is insufficient to
support a finding or verdict of
the court may, on i t s m o t i o n or on
the motion o fthe defendant, dismiss the
action and discharge the defendant.
[Emphasis added.]
In construing the statute, we note that the motion for
dismissal is conditioned upon "insufficient evidence" to
support a finding of guilty. A motion to dismiss under
S 46-16-403, MCA, should be granted only where there is - no
evidence upon which a trier of fact could base a verdict.
State v. White Water (Mont. 1981), 634 P.2d 636, 638, 38
St.Rep. 1664, 1666. Based upon the State's presentation of
direct evidence on the use of a weapon, we hold that the
trial court exercised sound discretion and properly allowed
the trial to proceed.
Issue 3
Did the District Court abuse its discretion when it
allowed the State to amend its information after trial began
but before the verdict?
On July 19, 1985, the State filed an information
against Matson, stating:
Defendant committed the offense of
AGGRAVATED ASSAULT, a Felony, as speci-
fied in Section 45-5-202, MCA ... On
or about June 15, 1985, the above-named
Defendant purposely or knowingly caused
reasonable apprehension of bodily injury
in Jason Nentwig, by use of a handgun, a
large pistol, by pointing it at the
victim.
However, S 45-5-202, MCA (1983), requires that the victim be
under reasonable apprehension of serious bodily injury.
Therefore, the information was amended, after the trial began
but before the verdict, by inserting the word "serious"
before "bodily."
The District Court concluded that the amendment was one
of form and not of substance, that no additional or different
offense was charged by the amendment, and that the amendment
did not prejudice any substantial right of the defendant.
Matson contends that the amendment was substantive and should
not have been allowed.
In reviewing this issue, we are guided by 5 46-11-403,
MCA, which states:
(2) The court may permit an information
to be amended - - - - any time
as to form at
before verdict or finding if no addi-
tional or different offense is charged
and if substantial rights of the defen-
dant are not prejudiced.
(3) No charge may be dismissed because
of a-formal
-- defect which does not tend
to prejudice a substantial right of the
defendant. [Emphasis added.]
Before analyzing the propriety of the amendment, we
must first analyze the adequacy of the original information.
An information is a written accusation prepared by a prosecu-
tor in the name of the state against a person for the commis-
sion of a crime. The information must reasonably appraise
the accused of the charges against him, so that he may have
the opportunity to prepare and present his defense. State v.
Coleman (1978), 177 Mont. 1, 22, 579 P.2d 732, 745. his
requirement is satisfied if the charges sufficiently express
the language of the statute which defines the offense. State
v. Hankins (Mont. 1984), 680 P.2d 958, 962, 41 St.Rep. 762,
766; § 46-11-401 (1)(c), MCA.
The original information fulfilled its primary purpose
of notifying the defendant of the charges by capitalizing the
words "aggravated assault" and specifically citing
§ 45-5-202, MCA. The original information simply paraphrased
the statute. Standing alone, the original information was
sufficient under Hankins.
The subsequent one-word amendment merely brought the
paraphrase into tighter conformation with the wording of the
cited statute. The amendment did not change the nature of
the offense, the elements of the crime, or the burden of
proof. The amendment was one of form rather than substance.
Coleman, 177 Mont. at 23, 579 P.2d at 745.
Matson suffered no prejudice as a result of the amend-
ment, especially because the State bore the heavier burden of
proving "serious bodily injury" throughout the trial, and
because the trial judge was fully aware of the elements of
aggravated assault. The court's decision to allow the amend-
ment dld not infringe on Matson's basic right to prepare his
defense. We hold that the District Court properly allowed
the State to amend the information.
Issue 4
Did the District Court abuse its discretion when it
admitted evidence of prior acts by Matson?
At an omnibus hearing on August 15, 1985, the State
gave notice of its intent to introduce evidence of "other
acts." On August 28, 1985, the State filed a written notice,
pursuant to the requirements of State v. Just (1979), 184
Mont. 262, 602 P.2d 957, which read:
[Tlhe State of Montana will seek to
introduce at the trial of this cause in
its case in chief evidence of other acts
- -
- - -
that - inseparably related to -
- charged, - - purpose ofprov-
are the
crime for the
of or
ing intent, absence - mistake - - acci-
dent, or any other permissible factor
-
such as~consciousnessof quilt. TEm~ha-
- &
sis added. ]
Three days before trial, the District Court filed an
order which stated: "The Court will allow all other evidence
concerning the prior acts and observations of the neighbors
contained in the State 's Notice. " In its case-in-chief, the
State introduced these prior acts through testimony from
Matson's neighbor that he had repeatedly seen Matson walk
around his property with a large-caliber pistol on his hip;
and through testimony from another neighbor that Matson shot
at a woman on a horse who had crossed onto Matson's property.
Matson contends that the court erred by allowing this
evidence.
Our analysis of this issue is governed by Rule 404 (b),
M.R.Evid., which states:
Evidence of other crimes, wrongs, or
acts is not admissible to prove the
character of a person in order to show
that he acted in conformity therewith.
- may, however, - admissible for other
It be
urposes, such as proof o f m o t i v e ,
gpportunity, inteni, preparaCTon, plan,
knowledge, identity, or absence of
mistake - accident.
or [Emphasis add]
de.
A trial judge is vested with broad discretion on the admissi-
bility of evidence. However, the evidentiary value of a
prior act must outweigh the risk of prejudice flowing from
its use. Rule 403, M.R.Evid.
The Just notice gave Matson ample opportunity to pre-
pare his defense. The prior acts mentioned in the Just
notice were relevant because they indicated both an on-going
dispute and a motive for Matson's actions. This dispute was
noted by Matson's counsel in his opening remarks:
Your Honor, in this case it would be
very difficult for the Court to make a
determination of what actually went on
that dav without some sort of backaround
on - relations hi^ - - transpired
- the that has
between the Matsons and their neighbors
... the Durvose of the evidence would
be to showLthe attitude that the neigh-
bors all took to the Matsons at the time
they moved here ..
show the state - -
. the evidence could
of mind that the Matsons
had ... [Emphasis added.]
During trial, Matson also introduced evidence of neigh-
bor disputes in which Matson was the injured party. However,
he wished to exclude evidence of neighbor disputes in which
Matson was the aggressor. Matson opened the door on these
prior acts. We cannot allow him to pick and choose only
those prior acts which favor his case.
Evidence of prior acts is admissible if these acts are
relevant to some issue other than defendant's character or
disposition to commit the crime charged. The prior acts were
relevant to the hostility that existed between the Matsons
and their neighbors. The prior acts were part of a chain of
events leading to the aggravated assault. The prior acts
were also probative of Matson's mental state at the time of
the assault. State v. Bashor (1980), 188 Mont. 397, 420, 614
P.2d 470, 483.
In summary, the admission of prior acts lies within the
discretion of the trial judge, provided that the probative
value outweighs the prejudicial. We find no abuse of that
discretion. We hold that Matson's prior acts were admissible
under Rule 404(b), M.R.Evid.
The State's Just notice also mentioned its intention to
introduce evidence of Matson's arrest on April 9, 1982, for
two counts of aggravated assault with a handgun. The notice
stated: "During that incident the Defendant pointed a .38
cal derringer at two men. The Defendant was charged with
aggravated assault. On April 22, 1982, the Defendant plead
guilty to a reduced charge of misdemeanor assault."
The District Court responded to the notice in its order
on October 18, 1985, where it stated: "The Court reserves
ruling on the evidence surrounding the Defendant's arrest at
Liquid Lonie's [sic] Tavern in Condon, Montana on April 9,
1982."
However, in its Findings of Fact, the Court stated:
"The Defendant was arrested, charged, and convicted of aggra-
vated assault in the summer of 1982 for pointing a handgun at
two patrons of Liquid Louie's Tavern in Condon Montana."
At the outset, we note that the finding was incorrect.
As the Just notice stated, Matson pled guilty to misdemeanor
assault in a plea bargain, not aggravated assault as noted in
the finding. In our analysis, we will first determine if the
court properly allowed the evidence of the arrest and charges
of aggravated assault. We will then determine the degree of
harm caused by the error in the finding.
We defined the guidelines for the admission of other
crimes under Rule 404 (b) in Just, 184 Mont. at 269, 602 P.2d
at 961. The four substantive requirements are:
(1) similarity of crimes, (2) remoteness in time, (3) common
system and (4) probative value.
In the instant case, both the prior crime and the
charged crime involved assault with a handgun. Unless the
remoteness is so great that the evidence has no value, the
remoteness of a prior crime "is directed to the discretion of
the District Court and is a matter that goes to the credibil-
ity of the evidence rather than its admissibility." State v.
Doll (1985), 692 P.2d 473, 476, 42 St.Rep. 40, 43-44. Even
if the prior crime was not sufficiently "common" or "relat-
ed," when the evidence "tends toward the conclusion that the
defendant is guilty of the crime charged with moral certainty
and beyond a reasonable doubt, it is certainly admissible."
State v. Sigler (Mont. 1984), 688 P.2d 749, 752, 41 St.Rep.
1039, 1042. The probative value of the prior crime shows
Matson's knowledge, as well as the absence of mistake or
accident in the commission of the present crime. Furthermore,
in a bench trial such as Matson's, there is less cause for
concern that the prejudicial effect may outweigh the
probative.
The procedural safeguards of Just prevent the defendant
from being surprised by evidence of collateral, unrelated
issues. In the instant case, the prosecution did not offer
the evidence of prior crimes to show character, but only to
show a specific element of knowledge. We find that the
evidence of prior crimes does not violate the Just require-
ments. In its discretion, the District Court properly admit-
ted Matson's prior arrest and charges of aggravated assault
into evidence.
However, the court erred in its finding, which should
have read that Matson was convicted of misdemeanor assault,
not aggravated assault.
In determining the degree of harm caused by this error,
we note that Matson's conviction can be solidly based on the
testimony of the victim and the admissions of Matson himself.
The evidence of prior acts, including the disposition of the
prior crime, was superfluous. Furthermore, the District
District Court had a copy of the Just notice, which properly
stated that Matson pled guilty to misdemeanor assault.
We find that the error was harmless to the defendant.
To correct the record, we direct the District Court to amend
its Finding IX(c) to read "convicted of misdemeanor assault."
Issue 5
Did Matson receive effective assistance of counsel?
Following his conviction and sentencing, Matson re-
tained new counsel to pursue the present appeal. Matson
contends that he received ineffective assistance of counsel
from his original attorneys because they failed to object to
Matson1s arrest without a warrant. However, we note that the
propriety of Matson1s arrest was irrelevant to his convic-
tion. An illegal arrest, without more, has no impact on
subsequent prosecution and has never been viewed as a defense
to a valid conviction. State v. Ellinger (Mont. 1986), 725
Matson also argues that his counsel was ineffective at
trial because they failed to object to most of the "other
acts" evidence; failed to object to the original information
until closing argument; and failed to object to opinion
testimony regarding the credibility of Jason and Jennifer.
We review this issue under the test articulated in
Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct.
First, the defendant - - -
must show that
counsel ' s performance - deficient.
was
This requires showing that counsel made
errors so serious that counsel was not
functioning as the "counsel" guaranteed
the defendant by the Sixth Amendment.
Second, the defendant must show that the
----
deficient performance prejudiced the
defense. This requires showing that
counsel's errors were so serious as to
deprive the defendant of a fair trial, a
trial whose result is reliable.
State v. Johnson (Mont. 1986), 719 P.2d 771, 773, 43 St.Rep.
Under the first prong of the Strickland test, Matson
generally alleges tactical trial errors by his original
counsel, but fails to specifically show how these alleged
errors constituted deficient performance. The decisions on
the timing and number of objections lie within counsel's
tactical discretion. We will not allow unsupported allega-
tions to brand counsel's performance as deficient. Matson
has failed to meet his burden of proof.
Matson stands convicted, not on the basis of unmade
objections, but on the basis of substantial evidence, in
which the great weight of testimony conclusively established
that Matson committed aggravated assault.
Affirmed.
We concur: