State v. Bell

No. 96-001
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996

STATE OF MONTANA,
Plaintiff and Appellant,
AUG 2 2 1995
v.
BRADLEY J. BELL,
Defendant and Respondent.

APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Big Horn,
The Honorable Robert W. Holmstrom, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Hon. Joseph P. Mazurek, Attorney General,
John Paulson, Ass't Attorney General,
Helena, Montana
Christine A. Cooke, Big Horn County Attorney,
Curtis L. Bevolden, Deputy County Attorney,
Hardin, Montana
For Respondent:
James L. Vogel, Attorney at Law, Hardin,
Montana

Submitted on Briefs: May 30, 1996
Decided: August 22, 1996
Justice W. william Leaphart delivered the Opinion of the Court.

Pursuant to § 46-20-103(2) (b), MCA, the State appeals from the
Big Horn County, Thirteenth Judicial District Court's Order
modifying the jury verdict of defendant Bradley J. Bell (Bell). In
response to Bell's motion for judgment notwithstanding the verdict
or new trial, the District Court changed the verdict of guilty of
criminal endangerment to a verdict of guilty of reckless driving.
We reverse.
The issue on appeal is:
Whether the District Court erred in concluding that
identification of a particular victim is an element of
the offense of criminal endangerment.
BACKGROUND
In the mid-morning hours of September 21, 1994, Big Horn
County Deputy Sheriff Gary Seder went to Bell's place of business,
an auto shop, in Hardin, Montana, to investigate a stolen vehicle
report. Bell denied Deputy Seder permission to search his place of
business. Deputy Seder then went to Bell's residence in Hardin to
further investigate. Bell, and his passenger Carl Venne, followed
Deputy Seder to the house in Bell's yellow pickup truck. After an
altercation with Deputy Seder outside the house, Bell returned to
the truck where Venne was still sitting in the passenger seat.
Deputy Seder approached the truck and opened the driver's door.
Deputy Seder had one hand on Bell's arm and the other on the
truck's door when Bell accelerated and sped away. Deputy Seder was

2
thrown back by the accelerating truck but was not hurt. Deputy

Seder then pursued Bell in his patrol car, flashing the emergency

lights and using the siren. Bell proceeded down Custer Avenue in

Hardin at speeds between 50 and 80 mph. Bell did not stop at a

stop sign and did not slow for a yield sign. Custer Avenue is a

narrow city street. Bell's route took him past homes, churches, a

library, and a grocery store. Bell turned off Custer Avenue onto

Fourth Street, made a wrong way entry into a parking lot and

stopped in front of the sheriff's office at the Big Horn County

Courthouse.

Bell was charged by information with two counts of criminal

endangerment in violation of § 45-5-207, MCA, and one count of

criminal possession of dangerous drugs in violation of § 45-9-

102(2), MCA. The first count of criminal endangerment involved

Bell's speeding away from Deputy Seder while Seder was holding on

to Bell and the pickup door. The second count of criminal

endangerment involved Bell's high speed drive through Hardin. Bell

pled not guilty to the three charges.

At trial, Deputy Seder testified that he saw two or three
people standing on the curb in front of the grocery store as he
pursued Bell but that he did not see anyone on the roadway. Deputy
Seder also testified that he saw a vehicle stopped at the

intersection with the yield sign at Custer Avenue and Fourth

Street. After the two-day trial, the jury found Bell not guilty on

the first count of criminal endangerment, guilty on the second

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count of criminal endangerment, and guilty on the count of criminal
possession of dangerous drugs.
Subsequently, Bell moved the court for judgment
notwithstanding the verdict or new trial. In response, the court
ordered that the jury's guilty verdict on count two of felony
criminal endangerment be set aside and replaced with a guilty
verdict for the offense of misdemeanor reckless driving. The court
changed the verdict because it determined that the State had not
proven an element of criminal endangerment. The court stated " [n] 0

evidence was presented by the prosecution indicating that an
identified person had been placed in substantial risk of death or
serious bodily injury by the defendant's actions." The State,
pursuant to § 46-20-103(2) (b), MCA, appeals the District Court's
modification of the jury verdict.
STANDARD OF REVIEW
As we stated in State v. Mummey (1994), 264 Mont. 272, 276,
871 P.2d 868, 870, the statutes governing criminal procedure do not
provide for judgment notwithstanding the verdict. However, we also
noted that:
[Section] 46-16-702, MeA, permits a defendant to move for
a new trial following a verdict of guilty, and under this
statute, the district court may modify or change the
verdict by finding the defendant guilty of a lesser
included offense or finding the defendant not guilty.
Mummey, 871 P.2d at 870. As in Mummey, Bell's motion for judgment
notwithstanding the verdict will be deemed a motion for a new trial
made under § 46-16-702, MCA. Our standard of review of a district

4
court's ruling on a motion for new trial is whether the district
court abused its discretion. Mummey, 871 P.2d at 870.
The State, however, argues that this case presents a question
of statutory interpretation which should be reviewed as a question
of law. State v. Christensen (1994), 265 Mont. 374, 375, 877 P.2d
468, 468-69. We agree. The District Court changed Bell's verdict
based on its interpretation of the phrase "substantial risk of
death or serious bodily injury to another" found in the criminal
endangerment statute, § 45-5-207, MCA. The court based its
interpretation of the phrase on the statute's legislative history,
our decision in State v. Brown (1995), 270 Mont. 454, 893 P.2d 320,
and an Arizona decision pertaining to a similar statute, State v.
Morgan (Ariz. 1981), 625 P.2d 951. Thus, we determine whether the
District Court's interpretation of law is correct. Christensen,
877 P.2d at 469.
DISCUSSION
Whether the District Court erred in concluding that
identification of a particular victim is an element of
the offense of criminal endangerment.
The District Court concluded that because" [n]o evidence was
presented by the prosecution indicating that an identified person
had been placed in substantial risk of death or serious bodily
injury by the defendant's actions," criminal endangerment had not
been proven. Section 45-5-207, MCA, provides:
(1) A person who knowingly engages in conduct that
creates a substantial risk of death or serious bodily
injury to another commits the offense of criminal
endangerment. 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
5
 of damaging a saw or other wood harvesting, processing,
or manufacturing equipment.

The second sentence of § 45-5-207, MeA, sets out an example of

criminal endangerment in which there is no identified victim.

Someone who knowingly places a "spike" in a tree creates a risk to

an unknown, unidentified logger or mill worker. Much like driving

80 mph down a city street, "spiking" has the potential of

endangering a person who happens to come into contact with the

dangerous object. In a prosecution for spiking trees, it is

sufficient that the State prove that the spike was "placed" for the

purpose of damaging a saw. It is not necessary that the State

prove that the tree was actually sawed or that an identifiable

person was endangered or injured by the spike. Additionally, the

criminal endangerment statute does not require proof that the

defendant intended to injure another. Rather, it requires that the

State prove that the defendant "knowingly" engaged in conduct and

that the conduct created a substantial risk of death or serious

bodily injury to another.

Recently, in State v. Smaage (Mont. 1996), 915 P.2d 192, 53

St.Rep. 294, we held that Smaage had been correctly charged under
the criminal endangerment statute rather than under the DUI
statutes. Sma age was arrested for driving recklessly in downtown
Helena, weaving into the oncoming lane of traffic, and swerving
down the street in the early morning hours. At the county jail,

Smaage's blood alcohol content tested at .250, far over the legal

limit of .10. On appeal, Smaage raised the issue of whether he

should have been charged under the more specific DUI statutes

6
rather than the more general criminal endangerment statute.

Although Smaage raised a different issue, much of the discussion in

Smaage is relevant to the instant case. In Sma age , we determined

that:

[t]he presence of other people on the streets down which
Smaage weaved the Buick--a potential lethal missile in
the hands of a driver with a .250 blood alcohol content--
supports a finding that Smaage engaged in conduct
creating a substantial risk of death or serious bodily
injury to another. We conclude that the facts support a
charge of criminal endangerment.

915 P.2d at 195.

Additionally, in Sma age , we looked at the legislative history

of § 45-5-207, MCA, and quoted the Senate Judiciary Committee

minutes as follows:

Senator Yellowtail asked if a person drinks a case of
beer and gets into a car, is that person guilty of
criminal endangerment or 1S it negligence [sic]
endangerment. Senator Halligan said an [sic] prosecuting
attorney would charge him with the highest possible
charge that they can, which is criminal endangerment.

915 P.2d at 194. The legislative history reveals that the

legislature envisioned including drivers of cars within the purview

of the criminal endangerment statute. Thus, Sma age establishes

that a person who knowingly drives a car in such a manner that he
creates a substantial risk of death or serious bodily injury to

another, even if the "other" be an unidentified person on the

street, can be guilty of criminal endangerment.

Our decision in State v. Brown specifically addresses the

question of whether a potential victim must be identified in order

for a defendant to be found guilty of criminal endangerment.

Brown, 893 P.2d 320. In the instant case, the District Court based

7
its change of verdict, in part, on Brown. In Brown, the defendant
fired several gunshots from his vehicle while traveling northbound
from Missoula, Montana, on Highway 93. Janet Hatt was driving in
front of Brown and saw him fire the shots. Although Brown was not
aiming at her, Hatt was frightened for herself and her daughters
who were also in her car. Shortly after the shots were fired, Hatt
reported the incident and the police arrested Brown. Brown was
charged with criminal endangerment. The jury acquitted him of this
charge and instead found him guilty of negligent endangerment.
Brown, 893 P.2d at 321.
Section 45-5-208(1), MCA, defines negligent endangerment:
A person who negligently engages in conduct that creates
a substantial risk of death or serious bodily injury to
another commits the offense of negligent endangerment.
[Emphasis added.]
The italicized portion of the negligent endangerment statute is the
same as the phrase at issue in the present case from the criminal
endangerment statute. In Brown, we recognized the similarity of
the statutes and we looked to the legislature's intent in passing
§ 45-5-207, MCA, the criminal endangerment statute: "The intent
was to 'plug a hole in the criminal law' and address conduct such
as placing poison into aspirin in a store." Brown, 893 P.2d at 322
(citing Minutes of the Montana House Judiciary Committee, February
5, 1987). As with spiking trees, if, before anyone was actually
poisoned by that aspirin, a defendant was prosecuted for placing
poisoned aspirin in a store, it would be impossible to identify a
specific person put at risk by the defendant's conduct.

8
 Brown moved for a directed verdict arguing that negligent

endangerment requires proof of a substantial risk of death or

serious bodily injury to an identified individual. Brown, 893 P.2d

at 322. Brown contended that the State was required to prove that

specific identified persons were put at risk by his conduct. We

rejected his "identified individual" argument which would require

proof that identified individuals were put at risk of death or

serious bodily injury. Rather, we held that the State had

presented sufficient evidence of a substantial risk of death or

serious injury to another by proving that there were several homes

along the highway and that there were unidentified passengers in a

car pulled over on the side of the road. Additionally, we

concluded that a trier of fact could have found that the shots

fired by Brown placed Hatt and her daughters at risk. Brown, 893

P.2d at 322.

In interpreting Brown, the District Court concluded that since

Hatt was an identifiable potential victim, the Brown decision does

not stand for the proposition that the State need not prove that

there was an identifiable victim in order to convict a defendant of
criminal endangerment. We take this opportunity to clarify our

holding in Brown. Although Brown involved both unidentified and

identified potential victims, we now hold that no specific victim

need be identified to find a defendant guilty of criminal

endangerment . Given the clear language of the statute which

specifically includes conduct (tree spiking) involving unidentified

victims, the legislative history which provides examples of drunk

9
drivers and poisoned aspirin, neither of which necessarily require
identified victims, and our holdings in Smaage and Brown, we hold
that the District Court erred in concluding that the identification
of a particular victim is an element of the offense of criminal
endangerment.
Justice Trieweiler's dissent, relying on Bell's self-serving,
after-the-fact assertions that his car was in good mechanical
condition, that he was completely in control and that no one was in
danger, expresses abhorrence at the proposition that a person can
be guilty of a felony "for nothing more than driving too fast."
Not surprisingly, our system of justice requires that the jury, not
the accused, determines whether he violated the law; that is,
whether his conduct created a substantial risk of death or serious
bodily injury. Bell's contention that no one was in danger because
he was "in control" is about as compelling as having someone shoot
a rifle into a moving passenger train and downplay the significance
of his conduct by arguing that his rifle is in good condition, that
he is a good shot, he did nothing more than shoot at the baggage
car and the police could not identify who, if anyone, was in the
train or the baggage car at the time.
Although Bell may have had no intent to injure anyone, he
knowingly drove down a city street at up to 80 mph. The fortuitous
circumstance that he did not actually harm anyone or have any near
misses is irrelevant. His driving down a city street at excessive
speed created a risk of death or serious bodily injury to unnamed,
unidentifiable people.

10
 We note that not all speeding violations necessarily rise to
the level of criminal endangerment. However, in situations such as
the instant case, we hold that where a person drives a car at
speeds up to 80 mph through occupied city streets, ignoring traffic
signs, in the middle of the morning, that person creates a
substantial risk of death or serious bodily injury to another, thus
committing the offense of criminal endangerment.
Reversed and remanded for reinstatement of the verdict of
guilty of criminal endangerment and resentencing in accordance with
that verdict.

Justices

11
Justice Terry N. Trieweiler dissenting

I dissent from the majority opinion which transforms anything

but the most minor of traffic offenses to a felony punishable by a

fine of up to $50,000 and imprisonment for a period of up to ten

years. Surely as a result of this decision criminal endangerment

has become Montana's "one size fits all" crime of choice for

zealous prosecutors.

The circumstances which led to Bradley Bell's conviction of a

serious felony are quite remarkable. He drove his vehicle which

was in good mechanical condition directly from his house to the

sheriff's office on a street where he had a clear field of vision

with no obstructions to his line of sight. There were no other

people or cars on the road. There were two or three people on the

sidewalk approximately one-half block from where Bell turned into

the sheriff's parking lot and there was a car at the final

intersection before the sheriff's parking lot. However, the people

on the sidewalk were not approaching the street and the pursuing

officer acknowledged that Bell's brake lights went on prior to the

last intersection.

Bell testified that there was no one in danger as a result of

his operation of his vehicle and that he was completely in control

at all times. When the pursuing officer was asked: "Can you name

one person that Brad Bell caused substantial risk of injury to?" he

answered, "I don't know of anybody, no."

The majority opinion characterizes Bell's testimony regarding

the condition of his vehicle and the degree of his control over

12
that vehicle as self-serving. The implication is that for some

reason we should assume, without proof by the State, that Bell was

out of control and that someone must have been in danger. However,

the last I knew, it was the State's burden to prove the factual

basis for every crime charged. It is not the defendant's burden to

prove that he did not endanger anyone. In this case, the State

simply failed to prove that anyone was endangered.

The majority contends that it is up to the jury, not this

Court, to determine whether the defendant violated the law. That

is an interesting and novel approach for an appellate court. For

five and one-half years I have been operating under the assumption

that one of this Court's responsibilities was to assume the truth

of the facts proven by the State and then determine as a matter of

law whether those facts support the crime for which a defendant was

convicted. Until now neither Justice Leaphart nor the other

signators of the majority opinion had done anything to dispel that

notion.

The majority opinion compares Bell's conduct to shooting a

rifle into a moving passenger train. Suffice it to say that

driving a vehicle down a street during daylight hours with a full

and clear view of all that is in front of or on either side of the

vehicle seems to me to bear little resemblance to blindly firing a

bullet into a moving passenger train. Beyond that, analysis of why

the majority would choose to compare a speeding vehicle to an armed

assault is beyond my field of expertise.

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 The inference from the majority opinion is that without the

sanction from the criminal endangerment statute, conduct like

Bell's would go unpunished. However, that is not correct. There

are numerous statutes which were specifically intended to punish

conduct exactly like Bell's.

Section 61-8-301, MeA, prohibits operating a vehicle in

willful or wanton disregard for the safety of persons or property.

Section 61-8-302, MeA, prohibits careless driving, and § 61-8-303,

MeA, requires that a vehicle be operated in a careful and prudent

manner and at a speed of no more than 25 miles per hour in an urban

district. It is significant that that maximum penalty that the

Legislature deemed appropriate for even the most serious of these

offenses (operating a vehicle in willful and wanton disregard for

the safety of others while fleeing a peace officer) is imprisonment

for not more than six months and a fine of not more than $500.

Section 61-8-715, MeA.

If the Legislature intended the penalty for the exact conduct

engaged in by the defendant to be no more than six months in prison

and a fine of $500, how could the Legislature have at the same time

authorized a penalty of up to ten years in prison and a fine of up

to $50,000 based solely on the discretion of the charging

authorities? The majority's conclusion to that effect makes no

sense and opens the door to widespread abuse in the application of

§ 45-5-207, MeA.

I conclude that based on the facts presented in this case

there was no evidence that Bradley Bell "knowingly engage[d] in

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conduct that create [d] a substantial risk of death or serious

bodily injury to another." Section 45-5-207(1), MCA (emphasis

added) .

The majority's suggestion· that Bell can be convicted of

criminal endangerment without endangering anyone simply because

under other circumstances he might have endangered someone had they

been on the street and encountered his speeding vehicle is a

strange theory indeed. The fact that someone might have been

endangered under other circumstances is completely irrelevant to

whether the State proved the elements of the criminal endangerment

statute based on the facts in this case. Based on the majority's

conclusion the possibilities for prosecution under the criminal

endangerment statute are limited only by the fertile imagination of

the State's prosecutors; this is exactly the kind of ambiguity and

opportunity for overcharging that our criminal jurisprudence has

traditionally sought to avoid.

At a time when most Montanans correctly assume that there is

no daytime speed limit in Montana, this Court has now held that law

enforcement authorities can, at their discretion, charge the people
of this state with a felony punishable by ten years in prison and
a $50,000 fine for nothing more than driving too fast. This state

may now have the most severe penalty in the country for a

victimless crime.

Add one more bizarre twist to a year of strange developments

in Montana.

15
 For these reasons I dissent from the maj ori ty opinion. I

would affirm the judgment of the District Court.

Justice William E. Hunt, Sr., joins in the foregoing dissenting
opinion.

16
Justice Karla M. Gray, dissenting.

I dissent and write separately to add an additional

perspective to that advanced by Justice Trieweiler.

It is a fundamental precept of the law that statutes defining

criminal offenses must "give a person of ordinary intelligence a

reasonable opportunity to know what is prohibited so that he or she

may act in accordance therewith." State v. Huebner (1992), 252

Mont. 184, 187, 827 P.2d 1260, 1262. As Justice Trieweiler points

out, various statutory offenses relating to operating a vehicle--

including statutes addressing reckless driving, careless driving

and the "basic speed rule" for urban areas--provide notice to the

driver of a vehicle that driving at excessive speeds in a populated

area is sanctionable conduct. Bell properly could have been

charged with any or several of those offenses. Section 45-5-207,

MCA, the felony criminal endangerment statute, on the other hand,

provides no such notice. I submit that no person of ordinary

intelligence would ever dream that speeding, regardless of how

egregious the rate of travel but without a resulting injury to

anyone, constitutes a felony offense carrying a penalty of

imprisonment for up to ten years and a fine of up to $50,000.

Moreover, it is important to look to the legislative history
of § 45-5-207, MCA. The criminal endangerment offense defined

therein was introduced as H.B. 301 in the 1987 legislative session,

in the words of the bill's sponsor, to "plug a hole in the criminal

law." What hole? As the sponsor explained it, the offense "would

17
apply primarily to cases in which someone would introduce poison

into aspirin tablets or something of that nature." (Emphasis

added.) No supporter of the bill testified or even suggested that

the offense was intended to encompass any conduct relating to

operating a vehicle, much less a speeding offense. One supporter

offered, as an example of conduct which would come under the

statute, the situation where a nurse who was a drug addict took a

patient's medication for his or her personal use and gave the

patient a different medication. This example corresponds in

concept and nature to the "aspirin tampering" example provided by

the sponsor.

Nor did any of the statutes from other states, upon which H.B.

301 purportedly was patterned and which were provided to the

Judiciary Committees, address any conduct relating to operating a

vehicle. Indeed, those statutes addressed only "reckless"

endangerment and, except for one statute which made the offense a

felony when the endangerment involved a substantial risk of

imminent death, all of the other states' endangerment offenses were

misdemeanors. The two court decisions supporters also provided--
one from Washington and one from Arizona--involved charges arising
from gun incidents.

The only amendment to § 45-5-207, MCA, came during the 1989

legislative session. That amendment specifically added conduct

commonly referred to as "tree spiking" to the definition of

criminal endangerment. Such conduct is of the same nature as the

"aspirin tampering" conduct for which the offense of criminal

18
endangerment originally was enacted.
Nothing in the legislative history of § 45-5-207, MeA,
supports charging Bell's operation of a vehicle at excessive speeds
as criminal endangerment. Nor does the language of the statute
apprise a person of ordinary intelligence that speeding, with
nothing more, constitutes a felony offense. I dissent.

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