No. 89-600
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
ODELL ECKER,
Defendant and Appellant.
APPEAL FROM: District Court of the Tenth Judicial District,
In and for the County of Fergus,
The Honorable Peter L. Rapkoch, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Bradley B. Parrish, Attorney at Law, Lewistown,
Montana
,- For Respondent:
Hon. Marc. Racicot, Attorney General, Helena,
Montana
Elizabeth Baker, Assistant Attorney General, Helena,
Montana
Craig Buehler, County Attorney, Lewistown, Montana
-. -
Submitted on Briefs: April 5, 1 9 9 0
~ecided: May 8, 1990
Filed:
A"
Clerk
Justice Diane G. Barz delivered the Opinion of the Court.
Odell Ecker, defendant, appeals the decision of the District
Court of the Tenth Judicial District, Fergus County, denying his
motion to dismiss the amended information charging misdemeanor
assault. Defendant alleged that the amended information was not
supported by an affidavit establishing probable cause. We affirm
the district court.
On September 12, 1988, the deputy county attorney for Fergus
County filed an information in the District Court for the Tenth
Judicial District, charging the defendant with the offense of
criminal endangerment, a felony. In support of the application for
leave to file the information, the deputy county attorney filed an
affidavit reciting the following facts:
That on or about the 10th day of August, 1988,
Charlene Garoutte was operating her motor
vehicle on a highway in Fergus County, Montana
near the Coffee Creek, Montana area. That the
Defendant Odell Ecker was operating his white
pickup truck in the same area. That the
Defendant drove his pickup immediately behind
the car of Charlene Garoutte and appeared to
b[e] trying to hit her car with his pickup,
that the Defendant also pulled his truck
around Charlene Garoutte[, ] got in front of
her of her [sic] car and put on his brakes,
whereby she had to either swerve around him or
crash into the back of his pickup. That
Charlene Garoutte then went around him, and
the Defendant then again put his pickup right
on the rear bumper of her car, as well as
tried to pass her and force her off the road.
That such activity of the Defendant appeared
to create a substantial risk of death or
serious bodily injury.
Trial was set for December 14, 1988, and was continued until August
On August 4, 1989, defendant moved to amend the charge on the
ground that the offense of criminal endangerment was not intended
to create an offense for conduct involving illegal or negligent
operation of motor vehicles, and, if so applied, would be
unconstitutionally overbroad. The district court agreed with
defendant and granted the motion to amend, ruling that the amended
charge should be a misdemeanor assault in violation of § 45-5-
201 (1) (d), MCA. Defendant raised no objection to this ruling, and
the court directed defense counsel to prepare the order. An order
was subsequently entered expressing the court's determination that,
the facts stated in the Affidavit in Support
of the Motion for Leave to File Information
concerning the alleged incident more precisely
support a charge of assault under M.C.A.
Section 45-5-201(1) (dl rather than the offense
charged in the Information under M.C.A.
Section 45-5-207. (Emphasis in original.)
The district court therefore directed the deputy county attorney
to file an amended information, but found no need for the filing
of a separate affidavit. An amended information was filed August
29, 1989, charging defendant with misdemeanor assault.
prior to commencement of trial on August 29, 1989, defendant
moved to dismiss the amended information on the ground that there
had been no affidavit filed to support the new charge of assault.
The court found that the affidavit in support of the original
information clearly described "all of the elements necessary to
charge assault" and denied defendant's motion to dismiss the
amended information as well as defendant's request to continue the
trial setting.
Defendant was convicted on August 30, 1989 of misdemeanor
assault. On September 7, 1989, he appeared in open court for
sentencing and was ordered to pay a fine of $500, together with a
$10 fee pursuant to 5 45-18-236, MCA, jury costs in the amount of
$956.16, and court costs of $67.50; he was further sentenced to a
term of six months1 incarceration at the Fergus County jail, with
all but three days thereof suspended.
The sole issue raised on appeal is whether the district court
erred in denying defendant's motion to dismiss the amended
information for failure to file a new affidavit.
Defendant argues that the offense of criminal endangerment and
the offense of misdemeanor assault are such dissimilar acts that
the county attorney was required to support the amended
information, charging defendant with misdemeanor assault, with an
affidavit that specifically stated that defendant "purposely or
knowingly caused reasonable apprehension of bodily injury in
another." Defendant then argues that since the affidavit in
support of the information charging defendant with criminal
endangerment does not mention the language found in the assault
statute, that the affidavit is not sufficient to establish probable
cause for the offense of misdemeanor assault. We disagree.
A court may use common sense and draw permissible inferences
when examining an affidavit for a determination of probable cause.
State v. Riley (1982), 199 Mont. 413, 423, 649 P.2d 1273, 1278.
This Court's role on appeal is merely to determine whether the
district court abused its discretion. State v. Buckingham (Mont.
1989), 783 P.2d 1331, 1334, 46 St.Rep. 2102, 2105.
The filing of an amended information does not require a second
4
affidavit if the affidavit filed with the original information
established probable cause as to the amended charge. Parker v.
Crist (1980), 190 Mont. 376, 381, 621 P.2d 484, 487. In Parker,
this Court specifically stated that
The filing of a second affidavit containing
the same information and the same showing of
probable cause would serve no purpose, would
not contravene the policy behind the
requirement, and would be superfluous. The
law does not require idle acts. Section 1-3-
223, MCA.
Parker, 190 Mont. at 381, 621 P.2d at 487. Accordingly, leave to
file the amended information was proper in this case if the
affidavit in support of the criminal endangerment charge contained
sufficient factual allegations to support a finding of probable
cause to believe that defendant had committed the offense of
misdemeanor assault.
The district court, in response to defendant's motion to
dismiss the amended information on the ground that there had been
no affidavit filed to support the new charge of assault, found that
the affidavit in support of the original information clearly
described "all of the elements necessary to charge assault." In
particular, the court noted that the affidavit described
defendant's actions, and also the victim's actions in trying to
avoid the assault, showing her awareness of the situation. The
court also commented that the part of the affidavit stating I' [tlhat
such activity of the Defendant appeared to create a substantial
risk of death or serious bodily injury" constitutes one of the
elements of assault.
The offense of misdemeanor assault is committed if a person
I1purposely or knowingly causes reasonable apprehension of bodily
injury in another.'I Section 45-5-201 (1)(d), MCA. As already
noted, assault requires apprehension of bodily injury, whereas the
terminology in the affidavit stated that defendant's actions
I1appeared to create a substantial risk.'' This difference in
phraseology, however, does not defeat the showing of probable cause
for assault. As noted above, the district court is allowed to draw
permissible inferences from the affidavit. When the affidavit is
examined as a whole, the district court could reasonably infer that
defendant's actions created a reasonable apprehension of harm in
the victim. The district court did not abuse its discretion in so
concluding.
Affirmed.
- Just
'
We concur: