No. 90-433
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
ANDREW P. FELANDO,
Defendant and Appellant.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and for the County of Lake,
The Honorable C. B. McNeil, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Benjamin R. Anciaux, Attorney at Law, Polson,
Montana
For Respondent:
Hon. Marc Racicot, Attorney General, Helena, Montana
Patricia J. Jordan, Assistant Attorney General,
Helena, Montana
Larry J. Nistler, Lake County Attorney, Polson,
Montana
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.Sbitd on Briefs: February 11 , 1991
Decided: April 2 2 , 1991
Filed:
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Clerk
Justice John Conway Harrison delivered the Opinion of the Court.
This is an appeal from the District Court of the Twentieth
Judicial District, Lake County, Montana. The appellant, Andrew P.
Felando, was convicted, by jury verdict, of intimidation, a felony,
and assault and disorderly conduct, both misdemeanors. Felando
appeals his convictions. We affirm in part and reverse in part.
The issues presented by appellant are:
1) Whether the venue of the misdemeanor assault charge was
properly in Lake County.
2) Whether the evidence is sufficient to support all three
convictions.
Andrew P. Felando was charged by information with the offenses
of felony intimidation as defined by 5 45-5-203(2), MCA;
misdemeanor assault as defined by 5 45-5-201(1)(d), MCA; and
disorderly conduct as defined by O 45-8-101, MCA. The facts
alleged in the information were as follows:
Count I [Intimidation]
That on or about May 23, 1989, in Lake County,
Montana, the . . .Defendant, [Felando] knowingly
communicated a threat of a pending fire to Janet Read,
which would endanger her life and her home.
Count I1 [Assault]
That on or about the month of March, 1989, in Lake
County, Montana, the .. .
Defendant, purposely or
knowingly caused reasonable apprehension of bodily injury
in James R. Underwood by threatening to kill him.
Count I11 [Disturbing the Peace]
That on or about May 20, 1989, in Lake County,
Montana, the . . . Defendant, disturbed the peace by
making loud or unusual noises and using threatening,
profane or abusive language and discharging firearms.
Following a jury trial on April 12 and 13, 1990, the defendant
was convicted of the charged offenses. The defendant was sentenced
to ten years in prison with five suspended on Count I, six months
in jail on Count 11, and ten days in jail on Count 111, to be
served concurrently. Appellant now appeals his convictions.
The standard of review on issues of substantial evidence is
that the conviction cannot be overturned if the evidence, 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. Laverdure (1990), 241
Mont. 135, 785 P.2d 718. Both sides presented extensive testimony
to foster their respective claims. The testimony conflicted in
many areas. The jury, as fact finder, was left to decide which
witnesses were most credible. The weight of the evidence and the
credibility of the witnesses are exclusively within the province
of the jury for its own determination. Laverdure at 138, 785 P.2d
at 720.
ASSAULT
Appellant was convicted of violating 5 45-5-201, MCA which
provides :
(1) A person commits the offense of assault if he:
(d) purposely or knowingly causes reasonable apprehension
of bodily injury in another.
Jim Underwood and appellant were neighbors. Underwood
testified that in March of 1989, while talking from their parked
vehicles on Whitetail Road in Lake County, appellant and
Underwoodls conversation became heated when Underwood asked
appellant if he was the one who had posted a sign which labeled
Dale Matitus as a poacher. After appellant denied posting the
sign, Underwood responded Ititsounds like something you [appellant]
would do. Upon that statement, Underwood testified that appellant
began "hollering and screaming, calling me filthy names."
Appellant ceased the verbal onslaught when Underwood's four-year-
old son stood up from inside Underwood's vehicle and came into
appellant's view.
Underwood and his passenger, Rick Sorenson, both testified
that, during this confrontation, appellant threatened to shoot
anyone that accused him of posting the sign. Appellant denied
making the threat. Underwood also testified he did not perceive
appellant to be a threat at that time. To this end, the following
testimony was elicited from Underwood during cross examination:
Q. [By Counsel]: Well, did you fear at the time you were
up on the road that he [Felando] would shoot you?
A. [By Underwood]: No, I did not.
A few days after the Lake County confrontation, appellant allegedly
told Mike Wood to relay a threat to Underwood that appellant would
shoot Underwood Itif he messed with him.'' Mike Wood is a neutral
party and an acquaintance of both appellant and victim. Mike Wood
testified that upon making this second threat, appellant was
obviously upset, was red in the face, and was to be taken
4
seriously. However, regarding this alleged threat, Wood's
testimony inherently conflicts since he also testified that: ''I've
known Andy and I didn't take it real serious.11 Wood and Underwood
both testified that when Wood communicated this threat to
Underwood, Underwood was frightened. Appellant denied ever making
this second threat.
Roughly one week later appellant and Underwood had a second
hostile confrontation at the Ferndale store which is located in
Flathead County. Underwood testified, along with passenger Dale
Matitus, that appellant stated he would have shot Underwood, on
Whitetail Road during their prior Lake County encounter, if not for
the presence of Underwood's son. Appellant denied making this
statement, and denied ever making any such threat. Underwood
testified, during cross examination, as follows:
Q. [By Counsel] : And did you fear at the time of being
at the store that he [Felando] would have shot you?
A. [By Underwood]: I didn't figure he'd shoot me at the
store. I figured maybe if he seen me on the roadside
somewhere he'd probably shoot, yes; or if he seen me out
in my yard when he was driving by, yes.
The jury heard all the testimony and viewed the witnesses as they
testified. Based on the evidence, the jury convicted the appellant
of misdemeanor assault. Appellant now argues that the State failed
to prove that the victim had any apprehension of bodily injury,
that the victim's apprehension, if any, was unreasonable, and that
the requisite mental state of appellant was not proven.
The defense's first argument is totally without merit since
it completely ignores Underwood's unequivocal testimony that he did
indeed think appellant might very well shoot him. This Court will
not substitute its judgment for that of the jury; a jury which, in
this case, was able to view firsthand the evidence presented,
observe the demeanor of the witnesses, and weigh the credibility
of each party.
The defense next contends that Underwoodls apprehension was
unreasonable. We agree. Consider threat #1, alleged to be made
in Lake County. This threat communicated the general message that
appellant would shoot anyone who accused him of posting a certain
sign. Underwood testified that this threat did not cause
apprehension of bodily harm. Underwood did not recant this
testimony. Next, consider threat # 2 communicated to Underwood
through Mike Wood. Appellant denies the threat. Wood, as the
State's witness, testified during direct as follows:
Q. [By Counsel]: When you spoke to Mr. Felando in March
of ' 8 9 about Mr. Underwood, what did the defendant tell
you?
A. [By Wood]: ..
. he said that the next time he seen
Jim [Underwood] I1hejust better watch it." He was going
to mess with him basically.
Q: Andy said what? The defendant Andy Felando said
what?
A. He was basically going to mess with him.
Q. What did llmess
with him" mean?
A. Well, basically shoot at him or kill him.
During cross examination, Wood further clarified the alleged
threat:
Q. [By Defense Counsel]: What were [Felandols] exact
words, if you can recall?
A. Well basically, just like I said, [Felando] just
threatened Jim's [Underwood's] life. He said he was
going to shoot him the next time he messed with him is
what it boils down to, you know. And I took Andy
seriously.
Q. So all Underwood had to do in avoiding getting shot
is not mess with Andy, right?
A. I guess. That's what it boiled down to in my
opinion. . . .
In our opinion, if indeed appellant made such a statement, the only
thing appellant promised to do was defend himself in the event that
somebody with him. How appellant chose to define the
phrase ''mess with1'is as uncertain as the evidence which tended to
establish that making this statement amounted to misdemeanor
assault. Appellant's alleged statement evidenced a strong desire
of his to simply be left alone, and although hostile, this
statement was not criminal.
Lastly, consider threat # 3 allegedly made at the Ferndale
store. Appellant is alleged to have said to Underwood something
to the effect of: if not for the presence of your son, I would have
shot you on the road in Lake County. This statement could not
reasonably have caused apprehension of bodily harm for two reasons.
First, as defense counsel asserts, the statement refers to a past
act and so necessarily could not be interpreted to communicate a
future threat of any kind. Secondly, the statement, by its very
conditional nature, necessarily negates any potential threat of
bodily harm. Any other interpretation defies logic. Although
making this statement was possibly hateful, we do not find any
evidence to support a finding that appellant was guilty of
misdemeanor assault for making this statement. Based on the
foregoing, we hold that the evidence presented was insufficient to
allow any rational trier of fact to find essential elements of
misdemeanor assault existed beyond a reasonable doubt. We
therefore reverse the conviction on the assault charge, and thus
need not rule on the issue of venue.
I1
DISORDERLY CONDUCT
Appellant was convicted of violating 5 45-8-101(1) (b), (c),
and (d), MCA, which provides:
Disorderly Conduct. (1) A person commits the offense of
disorderly conduct if he knowingly disturbs the peace by:
. . .
(b) making loud or unusual noises;
(c) using threatening, profane, or abusive language;
(d) discharging firearms.
Janet Read and appellant had been next door neighbors for roughly
five years. Ms. Read testified that on May 20, 1989, she called
the sheriff s office concerning a profane sign on the property line
between appellant's and Ms. Read's land. Deputy Perry Mock
responded to the call. There were four signs, made of paper
plates, which displayed powerful profanity, derogatory language,
and other unneighborly expletives all directed at Ms. Read. The
State admitted two of these signs into evidence during trial.
8
Appellant testified that he had, indeed, posted the signs, his
reason being that he considered Ms. Read was trespassing each time
she walked up to the fence line; the signs were meant as a warning
to stop her from trespassing. Appellant was referring to times
when Ms. Read approached the fence, which allegedly lay inside his
property line, in order to question him regarding backhoe work
performed in his back yard which tended to adversely affect a
stream which ran through their properties. Ms. Read and Deputy
Mock testified that Ms. Read was very frightened and quite upset
with the language on the signs. Ms. Read and the deputy walked
over to the fence where the signs had been posted. As Ms. Read and
the deputy returned toward the deputy's car, they heard screaming
and two gunshots coming from appellantls property. Deputy Mock
described the noise as "nerve wracking." Ms. Read identified the
screaming as appellant's and testified that the shots and screams
were threatening in nature as they were directed toward her and the
deputy. Apparently, appellant was angered by these alleged
trespassers. According to appellant, he was shooting at a target
and yelling at his horse. The jury convicted him of disorderly
conduct. Appellant contends that the State failed to prove that
appellant had the requisite mental state, arguing that he did not
know he was disturbing anyone's peace. We disagree.
Circumstantial evidence is sufficient to establish mental
state. State v. Krum (1989), 238 Mont. 359, 361, 777 P.2d 889,
890. The appellant was, according to defense counsel, llalmost
fanatic" about his property line, and the signs were meant as a
warning for Ms. Read to stop "harassing1'him. Appellant testified
that he was very protective of his property, that he knew exactly
were the boundary line was, and that it lay just a few feet outside
of his barbed wire fence. In view of his Itfanatictt
attitude the
jury could have found that the screaming and shooting was directed
at the deputy and Ms. Read because the appellant considered them
trespassers as they approached the fence. Considering all the
evidence together, under these circumstances, we hold that it would
be sufficient for any reasonable trier of fact to establish all the
elements of disorderly conduct beyond a reasonable doubt. We
affirm the jury verdict for this conviction.
INTIMIDATION
The jury convicted appellant of felony intimidation in
violation of 545-5-203(2), MCA, which provides:
A person commits the offense of intimidation if he
knowingly communicates a threat or false report of a
pending fire, explosion, or disaster which would endanger
life or property.
The facts alleged in the information regarding intimidation are as
follows:
Count I
That on or about May 23, 1989, in Lake County,
Montana, the . . .
Defendant, [Felando] knowingly
communicated a threat of a pending fire to Janet Read,
which would endanger her life and her home.
These threats were recorded by Ms. Read and the tape was played for
the jury and admitted into evidence. The tape contained a
collection of appellant's vulgar and derogatory remarks all
directed to Ms. Read which evidenced the hostility which appellant
felt toward Ms. Read. The tape also contained appellant's threat
that he planned to ''put a bullet throughf1her neck and threatened
to force her to engage in sodomy. In its most pertinent part, the
tape revealed appellant's threat of a pending fire:
I'm warning you, you [expletive], you better back the
f- up or we're talking about burning somebody's place
down. I'm surprised your place is still standing,
[expletive].
Now you better watch out or you won't have a house you
stupid [expletive]. I see you hiding, J- C- I
you're sleazy f ing [expletive].
You better sell that place quick while it's still
standing.
Appellant did not deny making the threats, but argues for a
different interpretation of the tape. However, the jury was the
trier of fact and it was within its province to resolve such a
question. Laverdure at 138, 785 P.2d 720. Ms. Read testified that
she definitely understood appellant's words as threats to burn her
house down. The question of whether an intention to commit a
felony is present must be decided on the basis of an objective
standard, and "whether a statement constitutes a true threat is to
be determined by the trier of fact.'' State v. Lance (1986), 222
Mont. 92, 104, 721 P.2d 1258, 1267 (citing United States v. Kelner
(2d Cir. 1976), 534 F.2d 1020 and United States v. Merrill (9th
Cir. 1984) , 746 F. 2d 458. The threats were made at the culmination
of several days of harassment of Ms. Read by the appellant. Ms.
Read testified that she was so frightened by appellant that she
began hiding in her house, coming out only when necessary. Based
on this testimony, the jury convicted appellant of intimidation.
In this case we hold that the evidence produced a fear in the
neighbor Janet Read that appellant's threats would be carried out.
Therefore, we affirm the jury's verdict for this conviction and for
the conviction for disorderly conduct, but reverse as to the
assault conviction.
- . A
chief Justice
Justices
Justice Fred J. Weber dissents as follows:
I respectfully dissent from the majority's reversal of the
misdemeanor assault conviction. The record contains substantial
evidence to support the conviction for misdemeanor assault.
In substance 5 45-5-201(1) (d), MCA, provides that a person
commits the offense of assault if he purposely or knowingly causes
reasonable apprehension of bodily injury in another person. While
the majority concedes that Mr. Underwood was apprehensive of bodily
injury, it concludes such apprehension was not reasonable and so
reverses the assault conviction.
We agree with the standard of review cited in the majority
opinion: a conviction cannot be overturned if evidence, when viewed
in a light most favorable to the prosecution, would allow any
rational trier of fact to find essential elements of the crime
beyond a reasonable doubt. State v. Laverdure (1990), 241 Mont.
135, 785 P.2d 718. That case emphasizes that the weight of the
evidence and the credibility of witnesses are exclusively to be
determined by the jury.
The majority isolates portions of the testimony instead of
considering the totality of the circumstances presented by the
evidence. During the first encounter on the road, while there was
no threat of bodily injury to Mr. Underwood, the defendant was
shouting and screaming filthy names at him and stopped only when
Mr. Underwood's four-year old son appeared. The second occurrence
took place a few days later when Mr. Wood told Mr. Underwood that
the defendant had relayed the information that the defendant was
13
going to shoot Underwood if he "messed with him." Wood testified
the defendant was serious, that he was red in the face, excited,
and screaming. Mr. Underwood testified he took the threat
seriously. Mr. Wood testified that Mr. Underwood was scared at the
time he conveyed the message to him. The third incident took place
a few days later at the Ferndale Market. At that time the
defendant started screaming again and calling Mr. Underwood names.
He told Mr. Underwood that if the boy hadn't been there, he would
have shot him on the road. Mr. Matitus, who was with Mr. Underwood
in the store, testified that the defendant was upset, red in the
face and yelling bad words. Mr. Matitus further testified that Mr.
Underwood was nervous, scared and upset by what the defendant said.
Mr. Underwood testified that he took the defendant's threats
seriously and believed he meant to do him bodily harm.
The majority has concluded that the apprehension of bodily
harm was not reasonable. I suggest that this disregards the
testimony of Mr. Wood and Mr. Matitus who both observed that Mr.
Underwood was scared. The totality of the circumstances suggests
there was a basis for apprehension of bodily harm on the part of
Mr. Underwood.
The majority emphasizes the aspect of "messing with1' in its
review of the testimony of Mr. Wood. It ignores testimony of the
same Mr. Wood who observed the apprehension on the part of Mr.
Underwood.
Had the jury viewed the evidence in the same manner as the
majority does in its opinion, I would be constrained to agree that
there was sufficient evidence to support that conclusion. However,
in this instance the jury, not the majority, was the trier of fact.
I conclude there was clearly sufficient evidence, when viewed in
the light most favorable to the prosecution, to allow the jury to
find defendant caused reasonable apprehension of bodily injury in
Mr. Underwood.
I would affirm the conviction for misdemeanor assault.
Justice R.C. McDonough concurs in the foregoing dissent.
@ A
@ Justice
Chief Justice J. A. Turnage concurs in the foregoing dissent.