No. 95-455
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
STATE OF MONTANA,
Plaintiff and Respondent,
v.
SHAWN KEVIN SMAAGE,
Defendant and Appellant
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Jeffrey M. Sherlock, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
J. Mayo Ashley, Helena, Montana
For Respondent:
Honorable Joseph P. Mazurek, Attorney General;
Patricia J. Jordan, Assistant Attorney General,
Helena, Montana
Mike McGrath, County Attorney; Vicki Frazier,
Deputy County Attorney, Helena, Montana
Submitted on Briefs: March 14, 1996
Decided: April 15, 1996
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
Shawn Smaage was convicted of felony criminal endangerment in
a bench trial in the First Judicial District Court, Lewis and Clark
County. He appeals. We affirm.
The issue is whether Smaage was incorrectly charged under the
criminal endangerment statute rather than under DUI statutes.
In the early morning hours of December 11, 1994, a citizen
reported to the Helena, Montana, city police that he had just
observed a man who appeared very intoxicated get into an older
white Buick and start "swerving down the road." The citizen
provided a vehicle description and license plate number.
Shortly thereafter, a deputy county sheriff located the white
Buick on a city street. The Buick continued to travel over several
city blocks, making a right-hand turn from the left lane of traffic
and weaving into the oncoming lane of traffic several times. Other
vehicles on the streets managed to avoid the Buick.
When the Buick's driver, who was later identified as Shawn
Smaage, was pulled over and got out of the car, he refused to
perform several field sobriety tests. Asked if he had been
drinking, Smaage admitted that he had "had his share."
At the county jail, Smaage tested as having a ,250 blood
alcohol content--well over the legal limit of .lO. See $3 61-8-401,
MCA. He was charged with second offense DUI.
Further review of Smaage's criminal record revealed that,
while he had been charged with DUI only once in the preceding five
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years, he had five previous DTJI convictions between 1981 and 1988.
Additionally, in April 1988, Smaage pled guilty to negligent
homicide as a result of the death of a passenger in a vehicle he
wrecked. Under the law in effect in 1994, all of Smaage's DUI
convictions which were over five years old had been deleted from
his driving record and could not be used to increase the DUI
penalty on the current charge. Section 61-E-714(5), MCA (1993).
After Smaage's record of drinking and driving was reviewed,
the charge against him was changed to criminal endangerment.
Smaage moved to dismiss the charge of criminal endangerment on the
ground that the criminal endangerment statute, § 45-5-207, MCA, was
inapplicable to the facts of this case. He also argued that the
statute was unconstitutionally vague as applied to him. The
District Court denied the motion to dismiss.
Smaage was convicted in a bench trial. He was sentenced to
ten years in prison and was designated a dangerous offender.
Was Smaage incorrectly charged under the criminal endangerment
statute rather than under the DUI statutes?
Section 45-5-207, MCA, provides:
Criminal endangerment--penalty. (1) Aperson who knowinq-
ly enqaqes in conduct that creates a substantial risk of
death or serious bodily iniurv 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.
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(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.]
Smaage argues that he should have been charged under the more
specific DUI statutes, §§ 61-E-401 and -722, MCA, rather than the
more general criminal endangerment statute.
Smaage cites State v. Langan (1968), 151 Mont. 558, 445 P.2d
565, in support of his proposition that a more specific statute
controls over a more general statute. Lansan addressed situations
in which the more specific statute conflicts with and cannot be
harmonized with the general statute. In Lanqan, a specific statute
prohibiting the issuance of a warrant to search a private residence
for contraband directly conflicted with general statutes allowing
issuance of a warrant. This Court held that the specific statute
controlled
Here, in contrast, we are not faced with a conflict between a
specific statute and a general statute, but with alternative
charging statutes. When there is no clear and manifest legislative
intent to the contrary and different proof is required under two
alternative statutes, it is not necessary that the most specific
statutory violation be charged. See State v. Booke (1978), 178
Mont. 225, 230, 583 P.2d 405, 408.
The legislative history of § 45-5-207, MCA, which was enacted
as Ch. 196, L. 1987, contains the following description of
discussion in the Senate Judiciary Committee:
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Senator Yellowtail asked if a person drinks a case of
beer and gets into a car, is that person guilty of
criminal endangerment or is it negligence [sic] endanger-
merit Senator Halligan said an [sic] prosecuting
attorney would charge him with the highest possible
charge that they can, which is criminal endangerment.
Minutes, Senate Judiciary Committee, March 6, 1987, at 5-6. The
above discussion does not demonstrate clear and manifest legisla-
tive intent to prohibit use of the criminal endangerment statute in
prosecutions for drinking and driving. In fact, we conclude that
the above exchange demonstrates legislative intent that the statute
may be so used.
We recently restated the general rule of prosecutorial
discretion in the charging of crimes:
It is not only incumbent upon the county attorney to
determine when or when not to prosecute a case, but when
the facts of a case support a possible charge of more
than one crime, the crime to be charged is a matter of
prosecutorial discretion.
State ex rel. Fletcher v. Dist. Court (1993), 260 Mont. 410, 415,
859 P.2d 992, 995. The question, then, is not which statute most
specifically covers the crime, but whether the facts support the
charge of criminal endangerment.
The elements of criminal endangerment are the mental state of
"knowingly" and the act of engaging in conduct that creates a
substantial risk of death or serious bodily injury to another. A
person commits the offense 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.
State v. Crisp (1991), 249 Mont. 199, 203, 814 P.2d 981, 983.
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The District Court, as the trier of fact, found that the facts
supported the charge of criminal endangerment. At the close of
trial, the court restated the facts leading up to Smaage's arrest.
It then quoted from the judge's comments at Smaage's 1988 sentenc-
ing for negligent homicide:
[Tlhe Court notes this defendant has five prior convic-
tions for driving under the influence of alcohol, and has
disregarded the risks and dangers he presents to society
by driving while drinking. The Court is aware the
defendant was raised as an alcoholic. He was raised to
kill by car. The defendant is a danger to society and
this sentence is imposed to protect the public from the
defendant, alcohol and automobiles.
After quoting the above comments of the 1988 sentencing court, the
District Court stated:
[Tlhat admonition issued by Judge Bennett some seven
years ago is a clear statement to this person that
driving drunk is going to hurt somebody. He continued to
do it. In fact, he's killed somebody. There were
vehicles on the roadway this night. We're all very lucky
no one else was killed. .
We have an 8th time DUI person. He has killed
somebody. He's been warned repeatedly, specifically by
Judge Bennett, that his conduct is creating a serious
danger to others and he's continued to engage in that
conduct.
On that basis, the District Court found Smaage guilty as charged.
The above comments by the District Court outline the evidence
in the record supporting a finding that Smaage acted "knowingly."
The 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
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serious bodily injury to another. We conclude that the facts
support a charge of criminal endangerment.
Smaage also argues on appeal that his conviction of criminal
endangerment is unconstitutional under principles of due process
and equal protection. He claims that his right to have the law
administered fairly and evenhandedly has been violated and that
5 45-5-207, MCA, is unconstitutionally vague on its face. In
Crisn, this Court upheld the facial constitutionality of 5 45-5-
207, MCA. These arguments were not raised in District Court and we
therefore decline to address them further on appeal. See § 46-zo-
701(2), MCA.
Finally, Smaage argues that § 45-5-207, MCA, is unconstitu-
tionally vague as applied to him. He complains that he was not
given fair notice that driving after drinking was a felony crime.
A statute not involving First Amendment freedoms which is
challenged as void for vagueness as applied must be examined in
light of the conduct with which the defendant is charged, in order
to determine if one could reasonably understand that the defen-
dant's conduct is proscribed. United States v. Mazurie (1975), 419
U.S. 544, 550, 95 S.Ct. 710, 714, 42 L.Ed.Zd 706, 713. In its
review, this Court must view the facts in the light most favorable
to the State. Criw, 814 P.2d at 984.
With his history of convictions of DUI and negligent homicide,
Smaage should reasonably have understood that his drunk driving
created a substantial risk of serious bodily injury to others and
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was therefore proscribed. Under the record in this case, we
conclude that § 45-5-207, MCA, is not unconstitutionally vague as
here applied.
Affirmed.