NO. 87-571
LN THE SUPREME COURT OF THE STATE OF MONTANA
1988
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
DARRELL W. CRABB,
Defendant and Appellant.
APPEAL FROM: District Court of Sixth Judicial District,
In and for the County of Park,
The Honorable Byron Robb , Judqe presidinq .
COUNSEL OF RECORD:
For Appellant:
Moses Law Firm; Stephen C. Moses, Billings, Montana
For Respondent :
Hon. Mike Greely, Attorney General, Helena, Montana
Joe R. Roberts, Asst. Atty. General, Helena
Wm. Nels S%/a.ndal,Livingston, Montana
Dan McGregor, Deputy County Atty., Livingston
Submitted on Briefs: April 7, 1988
Decided. May 26, 1988
Fil ed: hl bY 3, 6 1988'
-
Clerk
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
The defendant/appellant, Darrel-1 W. Crabb, was convicted
of one charge of felony assault as specified in
$ 45-5-202(2) (b), MCA. Trial was held before a iury in the
Sixth Judicial District, Park County, with the Honorable
Byron L. Robb presiding. Crabb appeals his conviction and we
affirm.
Defendant/appellant, Darrell Crabb (Crabb) along with
his wife, owns and operates the All Seasons Inn located in
Cooke City, Montana. Geri Donahue worked at the Inn and her
employment ceased in November 1986. Following the
termination of Donahue's employment, plans were made for her
to be transported to Livingston, Montana by a friend, William
Howard, on November 18, 1986. While traveling to Cooke City
from Livingston, Howard experienced car trouble and was
eventually assisted by a friend, Claude Nead. Howard and
Nead then proceeded to Cooke City driving Nead's van, and
arrived at approximately 10:30 p.m. to 11:OO p.m.
Despite the fact that Donahue lived in the employee
living quarters in the basement of the Tnn, Howard and Nead
entered the Inn and began to look for Donahue on the second
and third floors. Testimony at trial indicated that Nead and
Howard may not have realized the location of Donahue's living
quarters. Crabb resided on the third floor with his wife and
became concerned when he heard voices and noises in the
hallway. Apparently, business was very slow at this
particular time of year and most rooms were empty and not
prepared to receive customers. Crabb tucked a revol~~er
into
his pants and went to investigate.
Nead and Howard e v e n t u a l l y l o c a t e d Donahue b a c k i n t h e
lobby a r e a of the Inn. After a short conversation, Crabb
e n t e r e d t h e l o b b y a r e a and a d i s p u t e a r o s e . I n t h e course of
the dispute, Crabb r e v e a l e d h i s r e v o l v e r and p o i n t e d it a t
Howard. Testimony received at trial indicated that Crabb
threatened to shoot Howard as he aimed the gun at him.
Following an exchange of words, Crabb eventually ceased
pointing the revolver at Howard. Some of Donahue's
possessions were then loaded into the van and the group
departed. Upon arriving in Gardiner, Montana, a deputy
s h e r i f f was c o n t a c t e d and t h e i n c i d e n t was r e p o r t e d .
Crabb was l a t e r c h a r g e d by i n f o r m a t i o n on o n e c o u n t o f
felony assault, S 45-5-202(2)(b), MCA, charging that he
"purposely or knowingly caused reasonable apprehension of
s e r i o u s b o d i l y i n j u r y i n W i l l i a m Howard by u s e o f a weapon t o
wit, a revolver, by p o i n t i n g a r e v o l v e r a t him and
t h r e a t e n i n g him." A j u r y t r i a l was commenced on August 3 ,
1 9 8 7 and Crabb was found g u i l t y . Crabb r e c e i v e d a t h r e e y e a r
d e f e r r e d s e n t e n c e and was p l a c e d on p r o b a t i o n .
Crabb raises four issues for our consideration on
appeal :
1. Does the evidence sufficiently support the jury
verdict of guilty?
2. Was t h e r e a j u s t i f i a b l e r e a s o n f o r t h e d e f e n d a n t t o
threaten t h e use of force?
3. Did t h e d e f e n d a n t " u s e " h i s weapon?
4. Did the State prove the appellant acted with an
a p p r o p r i a t e mental s t a t e ?
Sufficiencv of the evidence.
Crabb asserts the evidence presented at trial does not
support the verdict. As to this particular issue, Crabb
makes no additional specific claims as to why the evidence is
insufficient. In considering whether the evidence is
sufficient to support a conviction for a criminal offense we
will look to the following standard of review as stated in
Jackson v. Virginia (1979), 443 U.S. 307, 318, 319, 99 S.Ct.
[Tlhe sufficiency of the evidence to
support a criminal conviction must be not
simply to determine whether the jury was
properly instructed, but to determine
whether the record evidence could
reasonably support a finding of guilt
beyond a reasonable doubt.
But this inquiry does not require a court
to "ask itself whether - believes
it
whether the evidence at the trial
established guilt beyond a reasonable
doubt." Woodby v. INS, 385 US, at 282,
17 L Ed 2d 362, 87 S Ct 483 ...
Instead, the relevant question is
whether, after viewing the evidence in
the liqht
<
most favorable to the
prosecution, any rational trier of fact
could have found the essential elements
of the crime beyond a reasonable doubt.
See Johnson v. Louisiana, 406 US, at 362,
32 L Ed 2d 152, 92 S Ct 1620. This
familiar standard gives full play to the
responsibility of the trier of fact
fairly to resolve conflicts in the
testimony, to weigh the evidence, and to
draw reasonable inferences from basic
facts to ultimate facts. (Emphasis in
original.)
See, State v. Lundblade (Mont. 1986), 717 P.2d 575, 577, 43
St.Rep. 732, 733, 734. In reviewing the record we find there
is sufficient evidence upon which a rational trier of fact
could conclude that the defendant was guilty of felony
assault as specified in 5 45-5-202 (2)(b), MCA.
Use of force.
Crabb contends he was merely using a reasonable threat
of force to protect himself and his property. Specifically,
Crabb relies on three statutes which state, in pertinent
part:
45-3-102. Use of force in defense of
person. A person is justified in the use
of force or threat to use force against
another when and to the extent that he
reasonably believes that such conduct is
necessary to defend himself or another
against such other's imminent use of
..
unlawful force .
45-3-103. Use of force in defense of
occupied structure. A person is
justified in the use of force or threat
to use force against another when and to
the extent that he reasonably believes
that such conduct is necessary to prevent
or terminate such other's unlawful entry
into or attack upon an occupied structure
45-3-104. Use of force in defense of
other property. A person is justified in
the use of force or threat to use force
against another when and to the extent
that he reasonably believes that such
conduct is necessary to prevent or
terminate such other's trespass on or
other tortious or criminal interference
with either real property (other than an
occupied structure) or personal property
lawfully in his possession or in the
possession of another who is a member of
his immediate family or household or of a
person whose property he has a legal duty
to protect . . .
Crabb states that all three statutes gave him the authority
to threaten the use of force because he reasonably believed
the threat was necessary to protect himself, the Inn, and his
other property.
All three statutes require that the party implementing
the threat of force "reasonably believe" that such action is
necessary. Determining whether such a reasonable belief
existed is necessarily a factual determination which belonged
to the jury. See, State v. Larson (1978), 175 Mont. 395,
400, 401, 574 P.2d 266, 269 (determining whether the
circumstances were such that defendant was justified in
shooting another is a question of fact for the jury). The
jury was instructed as to all three of the above statutes
addressing the justifiable use of force and still decided
Crabb was guilty of felony assault. Therefore, the jury has
made a factual determination that it was not reasonable for
Crabb to believe such a threat of force was necessary. After
a careful review of the record, we find there was sufficient
evidence for such a finding.
Crabb goes to great lengths to argue that he had the
right to use the threat of force to eject Howard and Nead
because they were committing a criminal trespass. One
commits a criminal trespass in Montana if he "knowingly
enters or remains unlawfully in an occupied structure ..
."
Section 45-6-203 (1)(a), MCA. "A person enters or remains
unlawfully in or upon any .. . occupied structure ... when
he is not licensed, invited or otherwise privileged to do so
... [and the privilege] may be revoked at any time by
personal communication of notice by the landowner." Section
45-6-201 (I), MCA. The criminal trespass statute is designed
to prohibit both the situation where one enters onto property
knowing that entry is forbidden, as well as the situation
where one remains on the premises of another after being
notified to depart. Crabb cannot argue that the initial
entry by Howard and Nead was a criminal trespass because,
despite the late hour, the Inn was open for receiving
business at the time of their entry. Instead, Crabb's
trespass argument must depend on the assertion that he
commanded them to leave and they refused to do so. Under
these facts, Crabb would have been justified in using a
threat of force to the extent he reasonably believed such
conduct was necessary to terminate the criminal trespass.
Section 45-3-103, MCA. However, as we have already noted,
this statute requires the reasonable belief that such force
is necessary and the jury failed to find such a reasonable
belief. Additionally, there was evidence allowing the jury
to conclude that Howard and Nead had not achieved the status
of trespassers. Although Crabb testified he commanded them
to leave, he also testified he allowed them one-half hour to
load Donahue's property and vacate the premises. Howard's
testimony indicated that Crabb did not tell them to leave the
premises until long after the confrontation involving the
weapon. We conclude there was sufficient evidence from which
the jury could find that Howard and Nead were not
trespassers.
Finally, Crabb contends he has the right to be "more
protective of himself" because he was in an isolated
situation in Cooke City. Evidence at trial demonstrated
there is no full time law enforcement agency in Cooke City
and that the nearest Park County deputy sheriff is usually
some distance away. We concede that such an isolated
situation may more often result in facts which allow the
justifiable use of force or threat of force. However, Crabb
has no additional rights to defend himself or his property
simply because he resides in an isolated area. The laws
governing the justifiable use of force or threat of force
obviously remain the same throughout the state and control an
individual's actions wherever he resides in the state.
"Use" of a weapon.
Section 45-5-202 (2) (b), MCA, provides that "a person
commits the offense of felony assault if he purposely or
knowingly causes reasonable apprehension of serious bodily
injury in another by use of a weapon . .. I
' This is the
provision under which Crabb was charged and convicted. Crabb
contends he did not actually "use" his revolver. Crabb
states there is no claim that the weapon was ever fired and
concludes one does not "use" a weapon unless it is fired or
used as a club. Therefore, Crabb argues that the State
failed to prove a necessary element of the offense.
In viewing the evidence in the light most favorable to
the prosecution, that evidence demonstrates that Crabb
purposely or knowingly pointed a loaded .44 magnum revolver
with an eight inch barrel at Howard's face from a distance of
approximately six feet and threatened to kill Howard. It is
ludicrous for Crabb's counsel to argue that such an action
does not qualify as the "use" of a weapon causing a
reasonable apprehension of serious bodily injury.
Crabb's counsel contends that it would have been more
appropriate to charge Crabb with misdemeanor assault. We
recognize that under a different factual situation the mere
pointing of a firearm in the direction of another might be
more properly charged as a misdemeanor assault. The
statutory provision of misdemeanor assault makes this obvious
because it provides, in part:
(1) A person commits the offense of
assault if he:
(d) purposely or knowingly causes
reasonable apprehension of bodily injury
in another. The purpose to cause
reasonable apprehension or the knowledge
that reasonable apprehension would be
caused shall be presumed in any case in
which a person knowingly points a firearm
at or in the direction of another,
whether or not the offender believes the
firearm to be loaded.
Section 45-5-201(1)(d), MCA. However, it is too large a leap
in logic to say that this is the only provision which speaks
to such conduct. The statute does not make it exclusive.
More importantly, S 45-5-201 (1)(d), MCA , and
§ 45-5-202 (2)(b), MCA, address differing conduct and require
differing elements of proof. Section 45-5-201 (1) (d), MCA,
addresses the reasonable apprehension of bodily injury, as
opposed to the reasonable apprehension of serious bodily
injury which is addressed by S 45-5-202 (2)(b), MCA. The
statutory terms of "serious bodily injury" and "bodily
injury" carry drastically different definitions. Compare,
$ 45-2-101(5) and (59), MCA. Under the facts of this case,
there is sufficient evidence to support the proposition that
Crabb purposely or knowingly used a weapon to cause a
reasonable apprehension of serious bodily injury, and it was
therefore appropriate to charge Crabb with felony assault.
Mental state.
Crabb asserts that even assuming he committed the
alleged act, he did so without any criminal intent or mental
state. Counsel for Crabb is effectively asserting that Crabb
cannot be convicted of this charge without a "bad mens rea"
or a specific intent to commit the crime. However, Crabb's
counsel is ignoring the fact that these concepts of mental
state were replaced long ago. See, State v. Klein (1976),
169 Mont. 350, 356, 547 P.2d 75, 78. The statute under which
Crabb was charged and convicted requires a mental state of
"purposelyn or "knowingly." See, $ S 45-2-101 (58) and (33),
MCA. The concepts of specific intent and bad mens rea are
irrelevant under this statute and the current Montana
criminal code. There is certainly sufficient evidence in the
record for the jury to have inferred that Crabb acted
purposely or knowingly.
For the foregoing reasons the judgment of the District
Court is affirmed.
h
We concur: