No. 95-420
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
STATE OF MONTANA,
Plaintiff and Respondent,
v.
CORY SCOTT WALSH,
Defendant and Appellant.
APPEAL FROM: District court of the Twenty-First Judicial
District, in and for the County of Ravalli
Honorable Jeffrey H. Langton, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
David E. Stenerson, Hamilton, Montana
For Respondent:
Honorable Joseph P. Mazurek, Attorney General;
Pamela P. Collins, Assistant Attorney General,
Helena, Montana
George Corn, County Attorney, Hamilton, Montana
Submitted on Briefs: October 10, 1996
Decided: January 10, 1997
Filed:
Cl&k
Chief Justice J. A. Turnage delivered the Opinion of the Court.
Cory Scott Walsh appeals his criminal convictions in the
District Court for the Twenty-First Judicial District, Ravalli
county. A jury found Walsh guilty of aggravated assault, account-
ability for aggravated assault, accountability for misdemeanor
assault and assault. We affirm.
The issues on appeal are whether sufficient evidence supports
the jury's findings and whether prosecutorial misconduct was estab-
lished in the State's amendments to the information.
Because the sufficiency of the evidence is at issue, we set
forth the facts in the light most favorable to the prosecution.
On May 11, 1994, Melodie Stewart, her ten-year-old daughter
Chellsi, and her fiance Christopher Lecce went to Lake Como, near
Hamilton, Montana, for a picnic. They left the lake at dusk in
Stewart's Chevrolet pickup truck, with Lecce at the wheel.
A car came up behind the pickup on the highway and began
following it closely with its bright lights on. Lecce flipped his
rear-view mirror down so that the bright lights would not be in his
eyes, and slowed down to let the car pass. The car continued to
tailgate the pickup with its bright lights on for a little over two
miles. When the car finally passed them, Lecce flicked his bright
lights on and off.
The two persons in the car, Cory Walsh and Christopher
Driscoll, made obscene gestures out of the car windows. They then
stopped the car directly in front of the pickup. They jumped out,
2
leaving their car doors open and blocking the roadway. Appearing
very upset, they approached the pickup.
Lecce got out of the pickup and the three men began to argue.
Walsh was very close to Lecce, and Lecce pushed him away. Stewart,
still in the car with Chellsi, screamed at them to stop. Walsh
said, "Shut up, bitch." Lecce turned to look at Driscoll, who was
behind him. Walsh then hit Lecce so hard that it brought him to
his knees. When Lecce got up, Walsh hit him again. Lecce tried to
get up, but both Walsh and Driscoll were hitting him, preventing
him from getting to his feet.
Stewart locked the doors to the pickup and told Chellsi to lie
down out of sight. Lecce was on the ground and Walsh and Driscoll
were kicking him when a second car drove up. Stewart hoped someone
in the second car would help them. However, three people got out
of the car hooting and hollering, and one of them, later identified
as Walsh and Driscoll's friend Joshua Vieth, joined in hitting and
kicking Lecce.
Stewart got out of the pickup with a cellular phone in her
hand and said (untruthfully--the phone was out of range) that she
had called the police, who were on their way. The two cars and
their occupants left the scene.
Lecce was left lying unconscious in a puddle of blood. When
he regained consciousness, Stewart drove him to the hospital. He
had bumps and bruises all over his head and bruises on his chest.
His throat was injured so that he had a hard time swallowing and
could not talk. Stewart was instructed to wake him every hour that
3
night because of his head injury. He lost one tooth during the
assault and another the next day. For several months, he had
problems with his balance and suffered from headaches.
Walsh was initially charged with aggravated assault on Lecce.
The State later obtained leave to amend the information, adding
charges of accountability for aggravated assault on Lecce by
Driscoll and Vieth, and assault on Stewart and Chellsi. The jury
found Walsh guilty of aggravated assault on Lecce, accountability
for aggravated assault by Vieth on Lecce, accountability for
assault by Driscoll on Lecce, and assault on Chellsi.
ISSUE 1
Was sufficient evidence presented at trial to support the
charges?
In criminal appeals, this Court reviews the sufficiency of the
evidence to determine whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt. State v. Richards (1995), 274 Mont. 180, 184,
906 P.2d 222, 224.
The State initially points out that Walsh did not move for
judgment of acquittal based on insufficiency of the evidence either
at the close of the prosecution's case or at the close of all the
evidence. He did, however, move for new trial, arguing that the
evidence was insufficient to support a finding of serious bodily
injury to Lecce or to support the charge of assault on Chellsi.
4
Section 46-16-702(Z), MCA, requires that a motion for new
trial must be filed within thirty days following a verdict. The
State points out that Walsh's motion for new trial was untimely
because it was not filed until some fifty-five days after the
verdict. While the State is correct that the motion was untimely
and should not have been considered, see State v. Gollehon (1995),
274 Mont. 116, 906 P.2d 697, this argument was not raised before
the District Court, and therefore we consider it waived.
Accordingly, we will consider whether the evidence was suffi-
cient to support the verdict on the charges of aggravated assault
upon Lecce and assault upon Chellsi. However, because Walsh failed
to argue at any time prior to filing his brief on appeal that the
evidence was insufficient to support the verdict on the account-
ability charges, we decline to consider that argument. See State
v. Johnson (19931, 257 Mont. 157, 162, 848 P.2d 496, 499.
Under § 45-5-202, MCA, a defendant commits aggravated assault
if he purposely or knowingly causes serious bodily injury to
another. At the time of the offenses charged here, "serious bodily
injury" was statutorily defined as bodily injury that:
(i) creates a substantial risk of death;
(ii) causes serious permanent disfigurement or protract-
ed loss or impairment of the function or process of any
bodily member or organ; or
(iii) at the time of the injury, can reasonably be
expected to result in serious permanent disfigurement or
protracted loss or impairment of the function or process
of any bodily member or organ.
Section 45-Z-101(59), MCA (1993). As the District Court noted, the
trial record in this case is devoid of evidence that Lecce was in
substantial risk of death. Therefore, we examine the record for
5
evidence of serious permanent disfigurement or protracted loss or
impairment of the function or process of any bodily member or
organ, or reasonable expectation of the same.
Walsh contends that the evidence at trial was not sufficient
to sustain his conviction of aggravated assault because Lecce did
not suffer serious bodily injury as defined in § 45-2-101(59), MCA
(1993). Walsh cites the opinion testimony of Lecce's dentist, Dr.
Olson. Dr. Olson testified that although Lecce's loss of two teeth
would cause serious or permanent disfigurement and impairment of
the function of the teeth in general, the loss of the two teeth
could not reasonably have been expected to cause a protracted
impairment of the function of the teeth in general. Dr. Olson
reasoned that a lot of people get along without all of their teeth.
Dr. Olson further testified that, prior to the beating, Lecce
had crowns on teeth numbers eight and nine, but that there were
teeth underneath with which he could work. After the beating, the
root was exposed on tooth number nine, and Dr. Olson had to perform
a root canal and insert a post inside the root large enough to
place a crown where the tooth had previously been. He also
replaced the crown on tooth number eight.
Walsh has cited no authority indicating that medical testimony
is necessary to establish serious bodily injury. A nonexpert
witness is competent to testify as to his past or present condi-
tion. State v. Bower (1992), 254 Mont. 1, 10, 833 P.2d 1106, 1112.
Lecce testified that it took about eight appointments and four
months before Dr. Olson was able to insert replacement teeth for
6
him. He also testified that, since the beating, there were some
foods he could no longer eat or could eat only with caution.
We note that several state courts have held that the loss of
a tooth was sufficient to support a charge of aggravated assault.
See State v. Bridgeforth (Minn. Ct. App. 1984), 357 N.W.2d 393,
394; Lenzy v. State (Tex. Crim. App. 1985), 689 S.W.2d 305, 310.
Further, as did the District Court, we consider the evidence
of the injury to Lecce's teeth in conjunction with the evidence of
his other injuries. Walsh and his friends left Lecce lying
unconscious in a puddle of blood. Lecce testified that the
aftereffects of the beating included headaches and problems with
his balance for several months. His injuries were potentially
serious enough to justify a CAT scan of his head.
Walsh next points to uncertainty in the evidence as to who
inflicted the blow that knocked Lecce's teeth loose. He alludes to
the absence of evidence of blood on his footwear or clothing.
Lecce testified that he did not recall whether the blow which
loosened his teeth occurred before or after the second car arrived.
Walsh testified that he hit Lecce only once. Stewart, in contrast,
testified that Lecce was lying on the ground unconscious, with
Walsh and Driscoll kicking him, when the second car drove up.
The weight and credibility of the evidence are exclusively
within the province of the trier of fact. State v. Flack (1993),
260 Mont. 181, 189, 860 P.Zd 89, 94. It was the jury's task to
determine which testimony was most credible concerning the extent
of Walsh's involvement in this incident.
Viewing the evidence in the light most favorable to the
prosecution, we conclude that a rational trier of fact could have
found the essential elements of the crime of aggravated assault
upon Lecce beyond a reasonable doubt.
We next examine the sufficiency of the evidence concerning the
charge of assault against Chellsi. Assault is defined in Montana,
in relevant part, as purposely or knowingly causing reasonable
apprehension of bodily injury in another. Section 45-5-201(1)(d),
MCA. Walsh maintains that there was no evidence that he at any
time made any move toward the occupants of the pickup. While he
concedes that Chellsi's fear may have been real, he contends her
fear was not reasonably associated with actions which created an
apprehension of impending bodily injury to her.
It is not necessary that the victim of an assault be the
direct recipient of the defendant's actions. In State v. Keup
(1987), 228 Mont. 194, 741 P.2d 1330, this Court sustained Keup's
conviction for assault after he fired a gun at the victim's dog,
next to which the victim was standing at the time. Walsh attempts
to distinguish this case from Keup, arguing that no shot was fired
or move was made in Chellsi's direction. However, it was undisput-
ed that moves were made against Lecce, another occupant of the
pickup in which Chellsi was riding.
"The jury may use common experience to conclude that a
particular situation would cause a person to experience fear."
State v. Lewis (1986), 220 Mont. 418, 422, 715 P.2d 1064, 1067;
citing State v. Case (1980), 190 Mont. 450, 621 P.2d 1066.
8
Chellsi, who was ten years old at the time of this incident,
testified that she saw Walsh and Driscoll walk over to her mother's
pickup and that they were big, were cussing, and appeared to be
drunk. Driscoll testified that at the beginning of the confronta-
tion with Lecce, he heard a little girl scream in the pickup.
Chellsi testified that she was screaming and frightened because she
thought Walsh and Driscoll were going to attack her and her mom,
too. She saw Walsh punch Lecce, heard her mother scream at them to
stop, and heard Walsh respond "Shut up, bitch."
Viewing the evidence in the light most favorable to the
prosecution, we conclude that a rational trier of fact could have
found beyond a reasonable doubt that Chellsi reasonably apprehended
bodily injury to herself, as one of the essential elements of the
crime of assault against her.
In summary, we determine that Walsh's claims of insufficiency
of the evidence are unsupported by the record. We affirm on all
grounds raised under this issue.
ISSUE 2
Was prosecutorial misconduct established in the State's
amendments to the information?
Walsh was initially charged with aggravated assault on May 25,
1994. Two months later, the State asked for and received permis-
sion to file an amended complaint adding the accountability
charges. In November 1994, two weeks before trial, the State again
obtained leave to amend the information, adding the charges of
misdemeanor assault against Stewart and Chellsi.
9
Walsh contends that the amendments were not based upon newly-
discovered facts, but were instead filed in response to his refusal
to accept a plea agreement. He points out that multiple charges
carry with them an inherent prejudice to a defendant. He maintains
that no purpose can be shown for the amendment of charges and it
should not have been allowed.
ll[W]hen the facts of a case support a possible charge of more
than one crime, the crime to be charged is a matter of prosecutori-
al discretion." State v. Booke (1978), 178 Mont. 225, 230, 583
P.Zd 405, 408. Section 46-11-205(l), MCA, allows an information to
be amended in matters of substance at any time up to five days
before trial. In this case, the prosecutor complied with all
applicable legal requirements in filing the amended information.
Moreover, the record discloses no factual basis for Walsh's
assertion that the State improperly amended the information in an
attempt to coerce him to plead guilty. Prejudice in a criminal
case will not be presumed; it must be established by the record
that the defendant was denied a substantial right. State v.
Arlington (1994), 265 Mont. 127, 150, 875 P.2d 307, 321. We hold
that Walsh has not established prosecutorial misconduct in the
amendments made to the information.
Affirmed.
y uChief Justice
Justices
11
Justice Terry N. Trieweiler concurring in part and dissenting in
part.
I concur with the majority’s conclusions that there was
sufficient evidence to sustain the defendant's conviction of
aggravated assault, and that based on the record available to us,
the allegation of prosecutorial misconduct is not established.
I dissent from the majority’s conclusion that there was
sufficient evidence to sustain the jury's verdict that the defendant
assaulted Chellsi Sventgard.
Walsh was involved in one fight with one victim (albeit the
odds were unfair and a brutal beating was administered). As a
result, he has been convicted of four separate crimes, even though,
based on the same facts now known, one charge was originally deemed
appropriate. Presumably, based on the majority’s conclusions, if
more of Walsh's friends had been passing by and stopped to
participate in the beating, and if more people had witnessed the
beating, Walsh could be charged with an endless number of
additional crimes. Applying the same theories applied to Walsh's
prosecution, the average hockey player in the NHL would spend the
rest of his life behind bars.
Section 45-5-201, MCA, provides, in relevant part, that:
(1) A person commits the offense of assault if he:
. . . .
(d) purposely or knowingly causes reasonable
apprehension of bodily injury in another.
There was no evidence that Walsh did anything to purposely or
knowingly cause Chellsi to fear that she personally would be
injured. She remained in Lecce's vehicle at all times during Lecce's
12
altercation with Walsh. During that time, the doors of the vehicle
were locked. At no time did Walsh threaten her. In fact, he said
nothing to her. He did not approach the vehicle in a threatening
manner; nor did he make any other threatening gesture toward her.
Her mother left the vehicle during Lecce's altercation with Walsh,
and moved about freely without any threat being made to her
physical well-being. In sum, there was no evidence that Walsh
either said or did anything which would support a finding that he
knowingly or purposely caused Chellsi to fear that she would be
personally harmed.
The majority cites various facts in support of its conclusion.
However, they all relate to what Chellsi observed Walsh or Driscoll
do in relation to some third person. None of the facts demonstrate
any aggressive act toward Chellsi, and none of the facts relied on
by the majority distinguish her from any other person who witnesses
a fight between two other people.
The concurring opinion suggests that this case is
distinguishable from a hockey brawl or a barroom fight because of
the age of the alleged assault victim and the fact that she was
returning from a picnic when the alleged assault occurred. Based
on the result-oriented approach advocated by the concurring
opinion, the amorphous test for assault is simply whether the
majority finds the defendant's conduct sufficiently offensive.
The concurring opinion wanders further astray by suggesting
that in lieu of any aggressive action toward Chellsi during the
defendant's altercation with Lecce. it was sufficient that the
13
State proved defendant tailgated the vehicle in which Chellsi was
a passenger with his bright lights on and made obscene gestures at
the Lecce vehicle. I am sure the general public will be surprised
to learn that tailgating and obscene gestures can serve as the
basis for a misdemeanor assault conviction. Furthermore, there is
no evidence that Walsh was even aware of Chellsi's presence in the
Lecce vehicle while he followed it, much less that by tailgating
and gesturing to the vehicle he "purposely or knowingly" caused her
fear of bodily injury. Finally, the State's charge of assault was
not based on tailgating or gesturing. It was based simply on the
fact that Walsh fought with Lecce in Chellsi's presence. The
charging document states that:
On or about the 11th day of May, 1994, in Ravalli
County, Montana, the defendant Gory Scott Walsh purposely
or knowingly engaged in conduct which placed C. Sv., a
youth, in reasonable apprehension of bodily injury by
exiting the vehicle which had caused the car in which she
was riding to stop and then violently attacking and
beating without apparent reason the driver of the car in
which she was riding, all in close proximity to C. Sv.,
which was in violation of the above statute.
While the concurring opinion strikes an admirable blow for
chivalry, it is a clear setback for predictable application of the
law.
The majority relies on Statev.Keup (1987), 228 Mont. 194, 741
P.2d 1330. However, there is no similarity between the facts in
Keup and those in this case. In Keup, the defendant actually fired
a gun in the direction of the victim. The victim was actually
endangered and had reason to fear that she would be injured.
Chellsi was not similarly endangered in this case.
14
Although the number of crimes for which Walsh was convicted
based on one fight is not the issue that has been raised, the
result in this case presents some bizarre possibilities. Distilled
to its essence, the crime that Walsh is guilty of is an unfair
fight which resulted in potentially serious injury to his victim.
However, as a consequence of an unfair fight, Walsh has now
been convicted of two felonies and two misdemeanors. He was
convicted of one felony because of his own participation. He was
convicted of a second felony because of another person's
participation. He was convicted of a misdemeanor because of a
third person's participation. And, he was convicted of a second
misdemeanor because of what a witness to the fight observed.
If this case sets any precedent, the opportunities for
prosecution of people involved in barroom brawls is endless. For
example, if five people beat up one person, each could be charged
with five felonies and sentenced to twenty years for each felony
conviction. If fifty people witness the beating, each defendant
could be charged with fifty counts of misdemeanor assault and
sentenced to another six months for each misdemeanor conviction.
All sentences could be imposed consecutively, and each participant
in the barroom brawl could end up being sentenced to 145
consecutive years for his or her participation.
I doubt very much that there was ever a legislative intention
that our criminal statutes be piled on in this fashion. The
purpose of misdemeanor assault statutes is to punish people who
knowingly harm or threaten harm to someone else.
15
The purpose of accountability statutes is to punish people
who, in combination with someone else, cause serious bodily harm
when it cannot be determined who actually inflicted the blow that
caused the harm.
The inconsistency of the jury's verdict is apparent in this
case when analyzed in terms of the only serious bodily harm that
was inflicted.
Walsh's conviction for aggravated assault was affirmed on the
basis that there was substantial evidence from which a jury could
have found that one of his blows knocked out one of Lecce's teeth.
However, he was also convicted of accountability for aggravated
assault based on blows struck by Joshua Vieth. If the only serious
bodily injury that Lecce sustained was the loss of his tooth, how
could two separate people on two separate occasions have caused the
same serious bodily injury? If both Walsh and Vieth did not cause
separate serious bodily injuries, then how could Walsh have been
convicted of two felonies? The whole series of developments in
this case, beginning with an information which charged only
aggravated assault; a subsequent amendment which added
accountability for aggravated assault; and a second amendment which
added charges of two misdemeanors, when all the information on
which the amendments were based was available to the State at the
time of the original information, smacks of prosecutorial mischief.
Although our decision is limited to the issues presented to
us, the fact that the majority gives its implied stamp of approval
to over-charging and over-conviction in this manner by concluding
16
that witnesses to fights are now separate victims, will assuredly
lead to future charges which have more to do with coercing plea
agreements than with honestly stating the nature of an accused's
alleged criminal conduct.
I am not suggesting that we canonize Walsh, but was it really
necessary to convict him of four crimes for one beating?
Call me soft, but I have an idea which, if considered and
acted upon, would restore some sanity to the criminal justice
system. It goes like this. One defendant who administers one
beating to one victim who sustains one serious injury is subject to
conviction for one felony, punishable by imprisonment for a period
of twenty years and a fine of up to $50,000. I know that my idea
probably does not satisfy the mob instinct to extract a pound of
flesh from Walsh for his abusive and uncivilized conduct; however,
it might restore some predictability, rationality, and
proportionality to our system of criminal laws. I hope the
majority will not reject it out of hand.
For these reasons, I dissent from that part of the majority
opinion which concludes that there was sufficient evidence to
affirm the jury's finding that Cory Scott Walsh assaulted Chellsi
Sventgard.
Justice William E. Hunt, Sr., joins in the foregoing concurring and
dissenting opinion.
17
Justice W. William Leaphart, specially concurring.
I specially concur with the Court's opinion. I write in
response to the dissent's view that there was insufficient evidence
to sustain the jury's verdict that the defendant Walsh assaulted
Chellsi Sventgard.
The dissent, in concerning itself with hockey players or
barroom denizens, overlooks the fact that in this case we are not
talking about someone who attended a sporting event or witnessed a
barroom fight. Rather, the present matter involves a lo-year-old
girl who was a passenger in a vehicle with her mother and her
mother's fiance Lecce, returning home from a picnic when this
assault occurred.
Walsh was convicted of assaulting Chellsi under 5 45-5-201,
MCA, which provides that a person commits the offense of assault if
he "purposely or knowingly causes reasonable apprehension of bodily
injury in another." The dissent contends that there was no
evidence that Walsh did anything to purposely or knowingly cause
Chellsi to fear that she personally would be injured. The dissent
states :
At no time did Walsh threaten her. In fact, he said
nothing to her. He did not approach the vehicle in a
threatening manner; nor did he make any other threatening
gesture toward her. Her mother left the vehicle during
Lecce's altercation with Walsh, and moved about freely
without any threat being made to her physical well-being.
In sum, there was no evidence that Walsh either said or
did anything which would support a finding that he
knowingly or purposely caused Chellsi to fear that she
would be personally harmed.
I strongly disagree. The evidence very clearly indicates that
18
Walsh and his accomplice Driscoll went to great lengths to strike
fear into the hearts of all the occupants of this vehicle. For
starters, the fact that Walsh refused to pass, choosing instead to
menacingly tailgate the vehicle for two miles with his bright
lights on, would cause both the driver and passengers concern for
their safety. The evidence indicates that when Walsh's car did
pass, he and Driscoll made obscene gestures at the Lecce vehicle.
There is nothing to indicate that Walsh and Driscoll were selective
and excluded Chellsi from their threatening gestures. The dissent
contends that there is no evidence that Walsh was even aware of
Chellsi's presence in the vehicle. If, after tailgating the Lecce
vehicle for two miles with lights on high beam, Walsh was unaware
that there were three people in the vehicle, it would only be
because he could not count. Notwithstanding the dissent's
skepticism in this regard, there was no evidence to support such a
conclusion.
Walsh then stopped his car directly in front of Lecce's and
blocked the roadway. In my view, young Chellsi had, at that point
in time, cause to reasonably apprehend bodily injury. That is,
when two grown men menacingly tailgate your vehicle for two miles,
make obscene gestures at you while passing and then block the
roadway, you had best be concerned for your welfare. Their
malevolent purpose soon became evident when the two men proceeded
to mercilessly beat and kick Lecce. The dissent is correct in
noting that neither of them actually made any verbal threats to
Chellsi, although they did say "Shut up, bitch" to her mother when
19
she asked them to stop. Then, as if the 2 to 1 odds were not
sufficiently favorable, three fresh accomplices arrived on the
scene, one of whom joined in hitting and kicking Lecce while the
other two stood waiting in reserve. Lecce, who at this point was
off his feet, was now confronted with five men. Fortunately we
will never know whether these five brave fellows would have turned
their attention to Chellsi because Chellsi's mother outwitted them
by feigning a call for help on a cellular phone which, unbeknownst
to them, was not working.
From Chellsi's lo-year-old perspective, if Walsh found it
sporting to engage in a grossly lopsided assault on Lecce, was it
not reasonable for Chellsi to fear that Walsh would find it equally
sporting to beat up on one little girl, one on one? In this day
and age, whether you are 10 years old or 50, whether male or
female, when a group of inebriates stops your car on a rural road
at night, after favoring you with obscene gestures, you can assume
that they are not going to offer you tickets to a hockey game.
There was more than sufficient evidence to support the verdict
that Walsh knowingly and purposely caused Chellsi to reasonably
apprehend that she would be personally harmed.
20
Chief Justice J. A. Turnage and Justice James C. Nelson join in the
foregoing specially concurring opinion.
Chief Justice
21