No. 94-112
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Thomas C. Honzel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Charles E. Petaja, Helena, Montana
For Respondent:
Honorable Joseph P. Mazurek, Attorney General;
Paul Johnson, Assistant Attorney General, Helena,
Montana
Robert Wood, Assistant City Attorney, Helena,
Montana
Submitted on Briefs: March 2, 1995
Decided: April 4, 1995
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
Charles Lee Reynolds, Jr., appeals his conviction of resisting
arrest, in violation of 5 45-7-301, MCA, following a jury trial in
the First Judicial District Court, Lewis and Clark County. We
affirm.
The issues are:
1. Did the District Court err in failing to dismiss the
resisting arrest chargesua sponte?
2. Did the District Court err in its administration of the
trial?
3. Was Charles denied effective assistance of counsel?
4. Did the District Court err in sentencing Charles?
On July 30, 1993, Helena Police Officers Brett Helling and
Jerry McGee were dispatched to a disturbance at the home of Charles
and Robin Reynolds. Gordon Eslick, a civilian passenger, accompa-
nied Officer Helling to the scene. When the officers arrived at
the Reynolds residence, they heard loud voices coming from inside
the house. Officer Helling knocked at the front door but nobody
responded. Helling went to an open window and called to the
occupants. Charles then came to the door and voluntarily exited
the house. Charles stood in the front yard with Officer McGee
while Officer Helling entered the residence and spoke with Robin.
Officer Helling described Robin as "hysterical." While he did
not observe any physical signs of abuse, he stated she was very
upset. After a short discussion with Officer Helling, Robin signed
a complaint of domestic abuse against Charles.
2
Officer Helling exited the house and proceeded down the front
steps. He informed Charles that he was under arrest for domestic
abuse. Charles faced the house and placed his hands behind his
back. Officer Helling secured a handcuff to Charles' left wrist,
grasped his right wrist, and attempted to complete the handcuffing
procedure.
At this point the witnesses' stories vary. Officer Helling,
Officer McGee, and Eslick testified that Charles pulled his right
arm away and swung it around the left side of his body in a
circular motion. Although both Officer Helling and Officer McGee
were located behind Charles, they both testified that they
interpreted his conduct as an aggressive gesture and as an attempt
to resist arrest. Both officers testified that, as he swung his
right arm he said something like "you are not going to arrest me."
After Charles swung his right arm, Officer Helling took him to
the ground. Officer McGee immediately came to Officer Helling's
aid and assisted in restraining Charles. The officers completed
the handcuffing procedure and transported Charles to the police
station for processing.
Charles claims that he did not attempt to strike either of the
officers. Rather, he argues that pulling his arm away was a reflex
reaction to Officer Helling's "wrenching" on his shoulder. He
claims that Officer Helling pulled his arm too hard and it caused
him substantial pain. His arm movement, he argues, was merely an
involuntary reaction to relieve the pain.
3
On September 20, 1993, Charles was found guilty of domestic
abuse and resisting arrest in the Helena City Court. Charles
appealed his conviction denovo to the First Judicial District Court
of Lewis and Clark County. On January 31, 1994, a jury found
Charles guilty of resisting arrest. The domestic abuse charge was
dismissed following the State's case-in-chief. Charles appeals his
conviction and the sentence imposed. We affirm.
Issue 1
Did the District Court err in failing to dismiss the resisting
arrest charge ma sponte?
Charles did not move the District Court to dismiss the
resisting arrest charge after the State's case-in-chief or at the
conclusion of the trial. However, the District Court may dismiss
a case upon its own motion if it finds that there is insufficient
evidence to support a conviction. Section 46-16-403, MCA, states,
in relevant part:
When, at the close of the prosecution's evidence or
at the close of all the evidence, the evidence is
insufficient to support a finding or verdict of guilty,
the~.court may, on its own motion or on the motion of the
defendant, dismiss the action and discharge the defen-
dant.
No dismissal is warranted if any rational trier of fact, viewing
the evidence in a light most favorable to the prosecution, could
conclude that the essential elements of the crime had been proven
beyond a reasonable doubt. We will not overturn the District
Court's decision not to dismiss a charge absent an abuse of
discretion. State v. Haskins (1992), 255 Mont. 202, 841 P.2d 542;
State v. Laverdure (1990), 241 Mont. 135, 785 P.2d 718.
Section 45-7-301, MCA, sets out the elements of resisting
arrest as follows:
(1) A person commits the offense of resisting
arrest if he knowingly prevents or attempts to prevent a
peace officer from effecting an arrest by:
(a) using or threatening to use physical force or
violence against the peace officer or another; or
(b) using any other means which creates a risk of
causing physical injury to the peace officer or another.
(2) It is no defense to a prosecution under this
section that the arrest was unlawful, provided the peace
officer was acting under color of his official authority.
Charles argues that the arrest did not comply with § 46-6-312, MCA,
which sets forth the manner in which warrantless arrests are to be
made. Charles claims that because the officers did not follow the
criteria established in 5 46-6-312, MCA, they were not acting under
color of authority.
We reject this argument for two reasons. First, the State
presented sufficient evidence by which a jury could find that the
officers did comply with 5 46-6-312, MCA. The officers testified
that they identified themselves, that they informed Charles that he
was under arrest and that the charge was domestic abuse. This is
all that 5 46-6-312, MCA, requires.
Second, we conclude that law enforcement officers need not
necessarily comply with the requirements of § 46-6-312, MCA, in
order to be acting under color of authority. Both officers were
dressed in official Helena Police Department uniforms and identi-
fied themselves as police officers. These acts alone are suffi-
5
cient to establish that the officers acted under color of authori-
ty. See Florida v. Shipman (Fla. Ct. App. 1979), 370 So.2d 1195.
Compliance with § 46-6-312, MCA, addresses the lawfulness of the
arrest, not whether the officers acted under color of authority.
Therefore, regardless of whether or not the officers complied with
§ 46-6-312, MCA, a resisting arrest charge is proper because the
officers acted under color of authority.
Next, Charles challenges the sufficiency of the evidence
concerning his mental state. He claims that he did not act
"knowingly" as required by 5 45-7-301(l), MCA. Rather, Charles
insists that his arm movement was a reflexive reaction to the pain
caused by Officer Helling's handcuffing procedure.
Conversely, the State presented testimony from Officer McGee,
Officer Helling and Eslick that Charles' arm movement was much more
than "reflexive" in nature. All three witnesses testified that
Charles' conduct was much more like an aggressive swing or punch,
twisting around his body toward the officers. Both officers
testified that, as he swung his arm, Charles stated that he was not
going to allow them to arrest him. Viewing the testimony of these
three witnesses in the light most favorable to the prosecution, a
rational juror could conclude that Charles' conduct was a conscious
effort to prevent the officers from effecting his arrest.
We conclude that the District Court did not abuse its
discretion in failing to dismiss suc2 sponte the resisting arrest
charge
Issue 2
Did the District Court err in its administration of the trial?
Charles alleges various errors in the District court ' s
administration of the trial. These claims include: 1) allowing the
State to present its case-in-chief concerning the domestic abuse
charge; 2) allowing the State to comment on the domestic abuse
charge after its dismissal; and 3) limiting Charles to evidence
concerning the resisting arrest charge after the dismissal of the
domestic abuse charge.
In Montana Rail Link v. Byard (1993), 260 Mont. 331, 860 P.Zd
121, we stated, w [tlhe standard of abuse of discretion is applied
to discretionary rulings, such as trial administration issues,
post-trial motions and similar rulings." Montana Rail Link, 860
P.2d at 125. Similarly, we apply an abuse of discretion standard
to trial court's evidentiary rulings. State v. Passama (19931, 261
Mont. 338, 341, 863 P.2d 378, 380.
Defense counsel's only objection concerning these matters came
during the State's cross-examination of Charles, and this objection
was properly sustained. Charles did not object to the court's
limiting his defense to evidence concerning resisting arrest or the
prosecution's references to domestic abuse. Charles concedes that
no objection was made to the District Court, but argues that we
should review it under the plain error doctrine. In the absence of
a timely objection, we may still review a district court's
decisions in order to assure that the substantial rights of the
parties have not been infringed and to prevent manifest injustice.
State v. Wilkins (1987), 229 Mont. 78, 80, 746 P.2d 588, 589. Such
appeals are also limited by 5 46-20-701(Z), MCA, which states:
Any error, defect, irregularity, or variance which
does not affect substantial rights shall be disregarded.
No claim alleging an error affecting jurisdictional or
constitutional rights may be noticed on appeal, if the
alleged error was not objected to as provided for in 46-
20-104, unless the defendant establishes that the error
was prejudicial as to his guilt or punishment and that:
(a) the right asserted in the claim did not exist
at the time of the trial and has been determined to be
retroactive in its application;
(b) the prosecution, the judge, or a law enforce-
ment agency suppressed evidence from the defendant or his
attorney that prevented the claim from being raised and
disposed of; or
(c) material and controlling facts upon which the
claim is predicated were not known to the defendant or
his attorney and could not have been ascertained by the
exercise of reasonable diligence.
See State v. Reynolds (1990), 243 Mont. 1, 792 P.Zd 1111.
We note that the references to the underlying domestic abuse
during the State's closing argument were appropriate to establish
why the officers were at the Reynolds residence and to put the
resisting arrest charge in proper context. We reiterate that the
prosecution's questioning of Charles during cross-examination
concerning the alleged domestic abuse was objected to by defense
counsel and sustained by the District Court.
After a careful review of the record, we conclude that Charles
has not been prejudiced by the alleged errors nor has he complied
with any of the requirements contained in § 46-20-701(2), MCA.
Charles has failed to show how the court's trial administration
infringed upon his right to a fair trial on the resisting arrest
charge. Therefore, we need not address these claims further
8
Issue 3
Was Charles denied effective assistance of counsel?
Charles claims that he was prejudiced by ineffective assis-
tance of counsel. We have adopted the United States Supreme
Court's test for determining whether a party has been denied
effective assistance of counsel. In State v. Aills (1991), 250
Mont. 533, 822 P.2d 87, we stated:
To demonstrate that counsel's performance was deficient,
defendant must prove that counsel's performance fell
below the range of competence reasonably demanded of
attorneys in light of the Sixth Amendment. Second, the
defendant must demonstrate that counsel's deficiency was
so prejudicial that the defendant was denied a fair
trial.
Aills, 822 P.2d at 88 (citing Strickland v. Washington (1984), 466
U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693). In
reviewing an ineffective assistance of counsel claim, the trial
counsel's performance "must not be tested by a greater sophistica-
tion of appellate counsel, nor by that counsel's unrivaled opportu-
nity to study the record at leisure and cite different tactics of
perhaps doubtful efficacy." State v. Marts (1988), 233 Mont. 136,
140, 760 P.2d 65, 68
In his appeal to this Court, Charles has summarized the
alleged prejudicial deficiencies as follows:
It is the position of the Appellant that trial counsel
knew or should have known that his wife would not testify
at District Court. Counsel should have concentrated on
the elements of the offense, and should have objected to
a continuation of the trial when the charge of domestic
abuse was dropped. Further, it is the position of the
Appellant that counsel should have requested that
judgment notwithstanding as to the verdict be granted.
Finally, Appellant believes that a mistrial should have
been requested by his counsel.
9
Charles has failed to established these alleged prejudicial
deficiencies.
First, the record does not indicate that either the prosecu-
tion or defense counsel knew with any degree of certainty that
Robin would not appear and testify at trial. Therefore, the
prosecution was entitled to present its case-in-chief and attempt
to establish the elements of the domestic abuse charge. See State
v. Pinkerton (Mont. 1995), Mont. ~, 52 St.Rep. 186.
Second, the record shows that the jury was properly instructed
on the elements of resisting arrest and the applicable burden of
proof. Charles has failed to show how his trial counsel's failure
to "concentrate" on these elements at trial prejudiced his right to
a fair trial.
Third, based on our determination that the State was entitled
to present its case-in-chief as to the domestic abuse charge,
Charles has established no reasonable grounds by which his trial
counsel could have objected to the trial continuing on the
resisting arrest charge after the dismissal of the domestic abuse
charge.
Finally, as discussed above, the prosecution's comments
concerning domestic abuse after the dismissal of the domestic abuse
charge did not constitute reversible error. Thus, Charles' trial
counsel did not err by failing to request a mistrial or a judgment
notwithstanding the verdict on such grounds.
We conclude that Charles was not prejudiced by ineffective
assistance of counsel as his trial counsel's performance clearly
10
fell "within the wide range of reasonable professional assistance"
required by law. Strickland, 466 U.S. at 689.
Issue 4
Did the District Court err in sentencing Charles?
Within the statutory sentencing guidelines, district courts
are given broad discretion in sentencing criminals and such
sentences will not be overturned absent an abuse of discretion.
State v. Carson (1984), 208 Mont. 320, 677 P.2d 587. Charles
claims that the District Court erred by sentencing him to the same
sentence ordered by the City Court. He claims that he was
convicted and sentenced for both domestic abuse and resisting
arrest in City Court while he was convicted and sentenced for only
resisting arrest in District Court. He claims receiving the same
sentence was inequitable and denied him adenovo review of the City
Court's determinations.
Charles' position is based on two misconceptions. First, this
Court does not review the equity of sentences. Reviewing whether
a sentence within the applicable statutory range is equitable under
the facts and circumstances of any given case is more properly the
duty of the Sentence Review Board, not this,Court. State v. Dahms
(1992), 252 Mont. 1, 825 P.2d 1214.
Second, a review of the record reveals that Charles did not
receive identical sentences in the City Court and the District
Court. The City Court sentenced Charles to 180 days in jail and
$500 plus costs for each conviction. Thus, his total sentence in
City Court was one year in jail with no time suspended and over
11
$1000 in fines and costs. The District Court, on the other hand,
sentenced Charles to 180 days in jail with 120 suspended and $500
plus one-half the cost of trial. His total sentence from District
court, therefore, is 60 days in jail with the remaining 120
suspended and a $500 fine plus one-half the costs.
We conclude that the District Court did not abuse its
discretion in sentencing Charles. The sentence is within the
statutory guidelines for resisting arrest and did not deny Charles
his right ofdenovo review from the City Court.
In his reply brief, Charles claims that any references to
domestic abuse in this trial were improper due to the prosecution's
failure to satisfy the notice requirements of the modified just
rule. See State v. Matt (1991), 249 Mont. 136, 814 P.2d 52. This
issue is raised for the first time in Charles' reply brief. The
scope of a reply brief must be limited to issues raised in the
response brief. Rule 23(c), M.R.App.P. Therefore, we will not
address this issue on appeal.
We affirm the decision of the District Court
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1988 Internal Operating Rules, this decision shall not be cited as
precedent and shall be published by its filing as a public document
with the Clerk of this Court and by a report of its result to State
Reporter Publishing Company and West Publishing Company
I
Chief Justice
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We concur:
April 4, 1995
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, the
following named:
Charles L. Reynolds
P.O. Box 9653
Helena, MT 59604
Charles E. Petaja
Helena Avenue Law Offices
1085 Helena Avenue
Helena, MT 59601
Hon. Joseph P. Mazurek, Attorney General
Paul Johnson, Asst. Attorney General
Justice Bldg.
Helena, MT 59620
Robert Wood
Assistant City Attorney
101 No. Last Chance Gulch
Helena, MT 59601
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA
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