No. 90-593
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
STATE OF MONTANA,
Plaintiff and Respondent,
v.
RANDALL DEAN CRISP,
CLERK OF 5U;PREiilE COIJR'
Defendant and Appellant. STATE Of PQNP9P44
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Russell Fillner, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Gary E. Wilcox, Attorney at Law, Billings, Montana
For Respondent:
Hon. Marc Racicot, Attorney General, Helena, Montana
Patricia J. Jordan, Assistant Attorney General,
Helena, Montana
Dennis Paxinos, Yellowstone County Attorney,
Billings, Montana; Charles Bradley, Deputy County
Attorney, Billings, Montana
SubmittedOn Briefs: April 11, 1991
Decided: July 2, 1991
Filed:
Clerk
Justice William E. Hunt, Sr., delivered the opinion of the Court.
A jury impaneled in the Thirteenth Judicial District Court,
Yellowstone County, found defendant and appellant, Randall Crisp,
guilty of one count of criminal endangerment, a felony. Defendant
appeals. We affirm.
The following issues are raised on appeal:
1. Is ?j 45-5-207, MCA, which defines criminal endangerment,
unconstitutionally vague?
2. Did the District Court err in refusing defendant's
instruction defining "substantial risk of death"?
Defendant and Renae Yancey had lived together off and on for
five years. On March 16, 1990, they were living in an area of
Billings known as Lockwood. They spent that evening drinking with
friends in Billings. Testimony at trial conflicted regarding the
time the couple left the nightclub known as T-Birds, the route they
took home, and, most importantly, the events that transpired during
the ride home.
Yancey, who is 5'3" tall and weighs 108 lbs., testified that
on the way home defendant accused her of spending money on someone
else, called her a tramp and a whore, grabbed her by the hair, beat
her head between the seats, hit her in the shoulder and face, and
threatened to kill her. Defendant drove past the turnoff to their
trailer and stopped in a field. He opened the passenger door and
yanked her out by her hair. When she landed on the ground on her
hands and knees, defendant, who is 6'4" tall and weighs between
205 and 210 lbs., proceeded to stomp on her and kick her with his
cowboy boots until about 4 a.m., over three hours later. He kicked
her in the head, neck, shoulder, arms, elbows, wrists, hands, back,
chest, stomach, shins, buttocks, knees, andthighs--in short, every
part of her body. She lost consciousness several times. He
threatened to kill her numerous times.
She further testified that, after he quit beating her,
defendant yanked her back into the Jeep, and took her to their
trailer. There, he pulled her out of the car by her hair, pushed
her up the steps, and continued to beat her. He followed her into
the bathroom, where he began to draw a bath. He told her that she
needed to get cleaned up to go to the hospital. When she went into
the living room to get away from him, he grabbed a steak knife and
threatened to kill her. She fell against a cupboard and crawled
to the couch. He yelled at her for bleeding on the couch, then
went to turn off the bath. She ran out of the front door and
sought assistance from the neighbors.
Defendant took the stand on his own behalf and testified that
he and Yancey began arguing on the way home. At one point, Yancey
started kicking him. He struck back at her, slapping her on the
arm, leg, shin, foot, and ribs. After he had resumed driving, he
heard the door to the Jeep open and saw Yancey falling out of the
vehicle. He grabbed her foot, but did not have the strength to
pull her back into the Jeep. She fell out.
Law enforcement officers were called at approximately
4:30 a.m. The deputy who first responded to the call testified
that Yancey was extremely afraid that defendant was going to kill
her. Defendant was immediately arrested. He told the deputies
that Yancey had jumped out of the Jeep while it was moving. At the
Yellowstone County Detention Facility, he stated that any blood on
his clothing would be hers.
Dr. Dennis Tek, the emergency room physician, testified that
Yancey had suffered numerous bruises about the face, head, neck,
chest, back, shoulders, thighs, and left shin. She had swelling
over the left cheekbone and a two centimeter laceration on her
scalp in the right superior temporal area.
Dr. Tek stated that being kicked about the head and body with
cowboy boots could possibly cause protracted loss or impairment of
a bodily member or organ, serious permanent disfigurement, or
death. He testified that Yancey had received a concussion, which
could have been a life-threatening condition if she had lost
consciousness. In response to the State's hypothetical on
redirect, he answered that a two-hour beating that rendered the
victim unconscious could place the victim in a substantial risk of
serious bodily injury. He noted on recross-examination, however,
that the injuries Yancey actually received from this incident did
not pose a substantial risk.
The jury found defendant guilty of criminal endangerment, a
felony, but acquitted him of resisting arrest, a misdemeanor.
Defendant was sentenced to ten years in the Montana State Prison,
with all ten suspended. This appeal followed.
Is 5 45-5-207, MCA, which defines criminal endangerment,
unconstitutionally vague?
A defendant may challenge the constitutionality of a statute
by arguing that the statute is so vague that it is void on its face
or that it is vague as applied in his particular situation. City
of Choteau v. Joslyn, 208 Mont. 499, 505, 678 P.2d 665, 668 (1984).
"A statute is void on its face if it fails to give a person
of ordinary intelligence fair notice that his contemplated conduct
is forbidden." State v. Woods, 221 Mont. 17, 22, 716 P.2d 624, 627
(1986); Joslyn, 208 Mont. at 505, 678 P.2d at 668. No person
should be required to speculate as to whether his contemplated
course of action may be subject to criminal penalties. State v.
Conrad, 197 Mont. 406, 412, 643 P.2d 239, 243 (1982).
The statute challenged in this case defines the offense of
felony criminal endangerment as follows:
(1) A person who knowinsly ensases in conduct that
creates a substantial risk of death or serious bodily
injury to another commits the offense of criminal
endanserment. This conduct includes but is not limited
to knowingly placing in a tree, log, or any other wood
any steel, iron, ceramic, or other substance for the
purpose of damaging a saw or other wood harvesting,
processing, or manufacturing equipment.
(2) A person convicted of the offense of criminal
endangerment shall be fined an amount not to exceed
$50,000 or imprisoned in the state prison for a term not
to exceed 10 years, or both. (Emphasis added.)
Section 45-5-207, MCA.
Defendant argues that the statute is vague on its face because
it does not require a specific intent to cause the risk. In State
v. Clawson, 239 Mont. 413, 421, 781 P.2d 267, 272 (1989), we
indicated that a defendant may commit the offense of felony
criminal endangerment by engaging in negligent or reckless conduct.
A plain reading of the felony criminal endangerment statute,
however, establishes that the State must prove that the defendant
acted knowingly. If the State can establish only that the
defendant acted negligently, the defendant may be convicted of
violating 5 45-5-208, MCA, misdemeanor negligent endangerment; he
may not be convicted of violating 5 45-5-207, MCA, felony criminal
endangerment.
Knowingly is defined in 5 45-2-101(33), MCA, as follows:
[A] person acts knowingly with respect to conduct or to
a circumstance described by a statute defining an offense
when he is aware of his conduct or that the circumstance
exists. A person acts knowingly with respect to the
result of conduct described by a statute defining an
offense when he is aware that it is highly probable that
such result will be caused by his conduct. When
knowledge of the existence of a particular fact is an
element of an offense, such knowledge is established if
a person is aware of a high probability of its existence.
Equivalent terms such as "knowingttor "with knowledgett
have the same meaning.
Accordingly, a defendant commits the crime of criminal
endangerment when he is aware that there is a high probability that
his conduct may cause a substantial risk of death or serious bodily
injury to another. By incorporating the intent element of
knowingly, a mental state that is adequately defined by statute,
the legislature has given fair warning of the mental state required
in order to be convicted of felony criminal endangerment. The use
of the mental state of knowingly does not render a statute
unconstitutionally vague. City of Billings v. Batten, 218 Mont.
64, 70, 705 P.2d 1120, 1124 (1985).
The defendant also takes issue with the phrase ttsubstantial
risk of death.It He argues that the term fails to define the type
of conduct proscribed by the statute.
Montana statutes do not define the phrase substantial risk of
death. The phrase is not so arcane or obscure, however, as to give
insufficient notice of the conduct prohibited by the criminal
endangerment statute. ggSubstantialgg defined as "not imaginary
is
or illusory: real, true." Websterts Ninth New Collegiate
Dictionary 1176 (1986). "Riskgt defined as ggpossibility loss
is of
or injury: peril.tg Webstergs at 1018. Thus, the term substantial
risk of death, warns a person of ordinary intelligence that if he
engages in conduct that could result in a real possibility of loss
or injury--in this case, death--he could be found guilty of the
crime of criminal endangerment. The fact that the phrase is not
defined in the code does not make the statute vague on its face.
Defendant also argues that the term substantial risk of death
is ambiguous because it fails to set forth the degree of the
injuries that must be suffered by the victim. Defendantt argument
s
rests on the faulty premise that the victim's injuries must pose
a substantial risk of death. The statute, however, does not
require that the victim suffer actual physical injury. See Campas
v. Superior Court, 767 P.2d 230, 232 (Ariz. Ct. App. 1989)
(interpreting Arizona's reckless endangerment statute). It
requires only that the defendant engage in conduct that creates a
substantial risk of death or serious bodily injury. Defendant has
not persuaded us that the statute is unconstitutionally vague on
its face.
Nor is the statute unconstitutionally vague as applied to the
facts of this case. Taking the facts in the light most favorable
to the State, as we must on review, City of Whitefish v.
OtShaughnessy, 216 Mont. 433, 437, 704 P.2d 1021, 1024 (1985),
defendant severely beat Renae Yancey for three hours. With cowboy
boots, he kicked her in the head, the stomach, and almost every
other part of her body. Surely, a person of ordinary intelligence
would understand that such conduct created a substantial risk of
death or serious bodily injury.
Did the District Court err in refusing defendant's instruction
defining "substantial risk of death"?
At trial, the District Court refused to give defendant's
instruction defining substantial risk of death. The instruction
read as follows:
Substantial risk of death means something more than
bodily injury. A substantial risk of death is posed by
injuries which are graver and more serious. In order
that substantial risk of death exist, it is not necessary
that the person die; however, in order for a substantial
risk of death to exist, it is necessary that a condition
or injury exist that without treatment of which, the
likelihood of death increases. A substantial risk of
death is more than a risk of death.
The instruction erroneously indicates that the victim must
sustain an injury that poses a substantial risk of death. As we
noted above, however, the statute does not require that the victim
suffer any injuries. It requires only that the defendant engage
in conduct that creates a substantial risk of death or serious
bodily injury .
Furthermore, the jury need not be instructed on words or
phrases of common understanding or meaning. State v. Gould, 216
Mont. 455, 477, 704 P.2d 20, 34 (1985); State v. Camitsch, 192
Mont. 124, 138, 626 P.2d 1250, 1258 (1981). As we stated earlier,
substantial risk of death is composed of commonly understood words.
The jury was perfectly capable of determining whether defendant's
conduct posed a substantial risk of death without an instruction
defining the term.
The instruction clouded, rather than clarified, the issues for
the jury. The District Court did not err in refusing it.
Affirmed. /
We Concur: