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No. 97-379
IN THE SUPREME COURT OF THE STATE OF MONTANA
1998 MT 181
STATE OF MONTANA,
Plaintiff and Respondent,
v.
GERALD HEFFNER and
D.J. HEFFNER,
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.
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COUNSEL OF RECORD:
For Appellant:
Richard L. Musick, Kalispell, Montana
For Respondent:
Joseph P. Mazurek, Attorney General, Pamela P. Collins, Assistant Attorney General, Helena, Montana;
Deborah Kim Christopher, Lake County Attorney, Polson, Montana
Submitted on Briefs: March 19, 1998
Decided: July 21, 1998
Filed:
________________________________________
Clerk
Justice William E. Hunt, Sr. delivered the Opinion of the Court.
¶1 Gerald and D.J. Heffner (Appellants), father and son, were charged with threats
and other improper influence in official and political matters, a felony, in violation of
§ 45-7-102(1)(b), MCA. Appellants were tried simultaneously in the Twentieth
Judicial District Court, Lake County. A jury found each Appellant guilty and
judgments of conviction were entered. Appellants jointly appeal the jury verdict and
judgments of conviction. We affirm.
¶2 We address the following issues:
¶3 1. Was the evidence sufficient to support Appellants’ convictions for the charged
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offense?
¶4 2. Does the record support Appellants’ claims of instructional error?
¶5 3. Is Appellants’ constitutional challenge to § 45-7-102(1)(b), MCA, properly
before this Court when it was not raised below?
BACKGROUND
¶6 On June 4, 1996, a crew of Lake County Road Department employees were
working to widen the Lake Mary Ronan Road, and build a base for the road in
preparation for asphalt. The road crew was using dump trucks, road graders, and
belly dumps to accomplish this project. The dump trucks and belly dumps would
dump gravel on the road, and the graders would berm the gravel in the middle of the
road. Finally, the graders would make passes back and forth to flatten the berm. In
flattening the berm, it was not uncommon for rocks as large as one foot in diameter
to turn up and be pushed to the outer edges of the road. The particular stretch of
road under construction consisted of about one and one half miles, from the junction
of Lake Mary Ronan and Camp Tuffit Roads to the entrance of Mountain Meadow
Lodge. "Men Working" and "35 mph" signs were posted at each end of the
construction zone.
¶7 When doing this type of road work, it is not possible for cars to use the road until
the grader operator periodically opens the road for cars to pass. On days of heavy
traffic, flaggers are used to control access to the stretch of road under construction.
However, on light to medium traffic days, the road crew operators control access to
the road themselves by using road signs and radios to inform each other when to let
cars pass, and to warn each other of "fast movers." On June 4, 1996, although "a
lot" of cars were using the stretch of road under construction, traffic was not heavy
enough to require the use of flaggers. Thus, the road crew operators controlled
traffic themselves.
¶8 At approximately 10:00 a.m., Appellants were traveling on Lake Mary Ronan
Road and came upon the construction zone on their way to picking mushrooms.
Appellants admit that they saw the signs and the road crew operators working.
Appellants traveled through the construction zone with no problems.
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¶9 Later that day, at about 2:30 p.m., Appellants had finished picking mushrooms
and were again traveling on Lake Mary Ronan Road. Charlie Adams (Adams), a
road grader operator, was backing up the grader while in the process of spreading
gravel. Adams looked in front of him and behind him using his rear view mirrors
and saw no one. He glanced down at his blade for a few seconds, then looked up in
his rear view mirror and saw Appellants’ truck come around the edge of the left side
of his grader. The truck was traveling at a high rate of speed, and Adams panicked.
He saw the truck go into the ditch on the left side of the road. When the truck came
to a stop, the truck’s passenger side wheels were on the left shoulder of the road, and
the rest of the truck was down into the ditch. The back of the truck was even with the
front of Adams’ grader. Adams continued backing up because he knew he would not
hit the truck.
¶10 D.J. Heffner was driving the truck. He exited the truck, walked to the door of
Adams’ grader and said something to Adams which Adams could not hear because
his grader was still running. It was Adams’ practice that when someone approached
his grader and wanted to talk with him, Adams exited his grader. When exiting the
grader, Adams had to turn around and climb down backwards. When Adams
climbed down from his grader and turned around, D.J. Heffner was standing about
four inches from Adams’ face. Adams felt threatened by D.J. Adams put his arms on
D.J.’s shoulders and pushed D.J. back. Adams did not remember whether he pushed
D.J. hard or easy. Adams next saw Gerald Heffner out of the corner of his eye about
an arm’s length away. He again felt threatened by the situation. D.J. began choking
Adams and Adams was unable to breathe. Adams testified he was positive he never
touched either of the Heffners except to push D.J. Heffner back.
¶11 The next thing Adams remembered was lying on his back and being choked.
Adams also remembered being on his hands and knees, looking to his right, and
seeing Bert Todd, a fellow crew member, being choked by Gerald Heffner. The next
thing Adams remembered was hearing Bob Richardson, another fellow crew
member, say that he ought to take Adams to the doctor. At that point, the Heffners
were gone.
¶12 D.J. and Gerald Heffner were later arrested and charged with threats and
improper influence in official and political matters, a violation of § 45-7-102(1)(b),
MCA. A trial by jury was held March 20-21, 1997. Bert Todd (Todd), a dump truck
operator, was working closely with Adams when the incident occurred. Todd
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testified that he was turning his truck around about a quarter of a mile from where
Adams was located when he saw Appellants’ truck coming toward him going
"extremely fast." Todd testified that there wasn’t much room in the road for
Appellants to pass, but that they "squeaked by" him heading in the direction of
Adams. Todd stated that Appellants were traveling so fast he did not have time to
radio Adams and warn him of their approach.
¶13 Todd completed his turnaround and headed in the direction of Adams. As he
rounded a bend in the road, he saw Adams lying in the road. He also saw Gerald
Heffner standing over Adams with his leg drawn back. Todd radioed the other crew
members, told them of the situation, and exited his truck. Todd saw Gerald kneeling
over Adams and saw Gerald strike Adams with his fist. Todd ran, tackled Gerald,
and rolled him off of Adams into the ditch. Gerald got up, put Todd in a choke hold,
and asked him twice if he "gives up." Todd could not answer because he couldn’t
breathe. After awhile, Gerald let Todd go and left with D.J. Todd testified that he
never saw Adams strike, kick, or grab either Gerald or D.J. Heffner.
¶14 Bob Richardson (Richardson), a road grader operator, was also working closely
with Adams on the day of the incident. Richardson testified that he saw Appellants’
truck coming around Adams’ grader "pretty fast" before it went into the ditch.
Richardson saw D.J. get out of his truck and run to Adams’ grader. Richardson
continued his work thinking D.J. and Adams were simply talking. A moment later,
Richardson looked up again and saw Adams lying in the ditch. Richardson then
heard Todd on the radio stating that "they had Charlie [Adams] down." Richardson
went to help Adams and saw Adams lying on the ground and D.J. standing over him.
Richardson saw that Adams sustained severe injuries to the eye area and the chest.
He looked around and saw Todd lying in the ditch with Gerald. Richardson then told
Appellants that he was going to call the sheriff. At that point, Appellants jumped in
their truck and left. Richardson tried to block the road with his grader but to no
avail. Richardson testified he never saw Adams strike, kick, or grab either Gerald or
D.J. Heffner.
¶15 Sheriff’s Deputy Dave Alexander was on duty the evening of the incident. He
responded to a complaint made by D.J. Heffner earlier in the day regarding an
assault. Officer Alexander telephoned D.J. and asked about the nature of the assault.
D.J. told Officer Alexander that Adams assaulted him and that he sustained injuries
to his back. Officer Alexander instructed D.J. to write a statement and wait for him
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to come and pick it up. When Officer Alexander arrived, Appellants gave him their
written statements. Officer Alexander looked for visible marks or other signs of
injury on Appellants but saw nothing. Appellants did not attempt to show him any
injuries.
¶16 Doctor David Gorman (Dr. Gorman) specializes in family medicine and
examined Adams after the incident. Adams told Dr. Gorman what had happened to
him, and Dr. Gorman took photographs of Adams’ injuries which were admitted into
evidence. Dr. Gorman stated that the photographs showed a considerable amount of
swelling over Adams’ left eye and a contusion over his left cheek. Adams’ left eye was
completely black and blue and almost swollen shut. The photographs also showed
abrasions and a large contusion on the upper right part of Adams’ chest. Dr.
Gorman defined an abrasion as a break of the skin and a contusion as the bruising
and swelling occurring under the skin. Dr. Gorman testified that Adams suffered
blunt force trauma. He stated that Adams’ eye and chest injuries indicated
immediate and substantial swelling, consistent with being punched or kicked. He
testified that the fact that Adams bruised so quickly meant that a great amount of
force was used.
¶17 Appellant Gerald Heffner testified in his own behalf and recounted a different
turn of events regarding June 4, 1996. He testified that when he and D.J. came upon
Bert Todd’s dump truck in the center of the road, they stopped and waited for the
dump truck to back up before continuing down the road. When they came upon
Adams’ grader, they moved to the side to avoid Adams and beeped the horn to let
Adams know they were there. Gerald stated that Adams stopped the grader when its
front wheel was even with the front wheel of Appellants’ truck. He stated that Adams
said something to them and began exiting his grader.
¶18 Meanwhile, D.J. had exited his truck. Gerald testified that Adams and D.J. met
near the truck and that Adams was angry. He saw Adams strike D.J. and push him
back. Gerald stated that Adams was on top of D.J. in the ditch and that Adams hit D.
J. several times. Gerald did not know where any of these blows landed on D.J.
Gerald ran and pulled Adams back. Gerald testified that Adams hit him and that he
responded by hitting back. Gerald did not know where he hit Adams. He did not
know he had given Adams a black eye until he was arrested. In his written statement
made on the day of the incident, Gerald never stated that he hit Adams. Gerald
testified that after the struggle with Adams, Bert Todd swung at him but missed.
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Gerald threw his arm around Todd’s neck and they hit the ground in the ditch. Once
Todd calmed down, Gerald let him go. Gerald and D.J. then left the scene.
¶19 D.J. Heffner also testified in his own behalf. D.J.’s account of events was similar
to Gerald’s, only D.J. stated that when he came upon Adams’ grader, he came to a
full stop and did not go into the ditch. He testified that Adams continued to back up
his grader and was coming close to his truck. D.J. honked his horn to alert Adams of
his presence. D.J. stated he could have moved his truck out of the way. D.J. testified
that he sustained injuries to his right eye and right leg. This testimony was
inconsistent with his written statement made on the date of the incident. D.J. testified
that Adams was conscious during the entire incident and was standing up when he
and Gerald left the scene. He testified that the bruise to Adams’ eye was visible when
he left the scene.
¶20 When Appellants were arrested on June 6, 1996, photographs of their bodies
were taken by Sheriff Joe Geldrich. It is undisputed that the pictures show light
bruising on Gerald’s back. However, it is disputed whether the photographs show
any injuries to D.J.’s body. D.J. claimed that small red marks located under his right
eye and near his right knee resulted from the struggle with Adams. The prosecutor
could not see any visible injuries on D.J., let alone injuries that would have resulted
from the events described by Appellants.
DISCUSSION
Issue 1
¶21 Was the evidence sufficient to support Appellants’ convictions for the charged
offense?
¶22 This Court reviews the sufficiency of the evidence in a criminal case to determine
whether, upon viewing the evidence in a light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the offense beyond a
reasonable doubt. State v. Ford (1996), 278 Mont. 353, 359, 926 P.2d 245, 248.
¶23 Appellants were charged and convicted of threats and other improper influence
in official and political matters, a felony, pursuant to § 45-7-102(1)(b), MCA, which
provides in relevant part:
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(1) A person commits an offense under this section if the person purposely or
knowingly: . . . (b) injures the person or property of a public servant . . .
because of the public servant’s lawful discharge of the duties of the office or
to prevent the public servant from discharging the public servant’s official
duties.
"Public servant" means any officer or employee of government. Section 45-2-101(62),
MCA.
¶24 Appellants do not dispute that Adams is a public servant. Appellants also do not
dispute that they purposely or knowingly injured Adams. Appellants only dispute the
sufficiency of the evidence regarding whether they injured Adams because of Adams’
lawful discharge of his duties or to prevent Adams from discharging his official
duties. Appellants argue that no evidence exists to support a finding that Appellants’
actions were motivated by either distaste for Adams’ work or a desire to prevent
Adams’ from completing his work. Appellants argue the evidence shows their actions
were motivated by self-defense in response to Adams pushing D.J. Appellants further
argue that because Adams pushed D.J. first, the State must prove that pushing D.J.
was part of Adams’ official duties in order to convict them of the charged offense.
¶25 The State counters that proof that pushing D.J. was part of Adams’ official
duties is not an element of the charged offense and, therefore, need not be proven.
The State further argues that Appellants have focused on a narrow time frame of the
incident and have glossed over the relevant events occurring before Adams pushed D.
J. The State argues that given the totality of circumstances, Appellants’ arguments
are without merit. We agree with the State. We will address Appellants’ arguments
in turn.
¶26 First, to obtain a conviction for a criminal offense, the State need only prove the
elements of the offense as defined by statute. See Patterson v. New York (1977), 432
U.S. 197, 211 n.12 ("[t]he applicability of the reasonable doubt standard has always
been dependent on how a state defines the offense that is charged in any given case");
State ex rel. Keyes v. Thirteenth Judicial District, 1998 MT 34, ¶¶ 15-24, 55 St. Rep.
125, 127-28, 955 P.2d 639, 642-43 (Court considered the plain language of the
accountability and felony murder statutes in determining whether the defendant was
charged with a legitimate offense under Montana law). A conviction pursuant to § 47-
5-102(1)(b), MCA, requires proof of the following elements:
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1. That the defendant injured the person of a public servant because of the
public servant’s lawful discharge of the duties of the office or to prevent the
public servant from discharging the public servant’s official duties; and
2. That the defendant acted purposely or knowingly.
We hold that the State was not required to prove that pushing D.J. was part of
Adams’ official duties because it is not an element of the charged offense.
¶27 Second, the State produced sufficient evidence from which a rational jury could
find that Appellants’ actions were motivated by either distaste for Adams’ work, or a
desire to prevent Adams’ from completing his work, or both. Appellants saw the
"men working" and "35 mph" signs posted at both ends of the construction zone, yet
disregarded them and continued traveling at a high rate of speed. When Appellants
came upon Adams’ grader in the middle of the road, Appellants either did not stop
or could not stop. Appellants were forced to move left and ended up with the their
truck in the ditch.
¶28 D.J. got out of his truck and ran toward Adams’ grader. D.J. said something to
Adams. Adams couldn’t hear and began to climb backwards out of his grader, as was
his practice when someone wanted to talk to him. As Adams turned around, D.J. was
standing four inches from his face. In response to D.J.’s invasion of Adams’ personal
space, Adams put his hands on D.J.’s shoulders and pushed him back. Bert Todd saw
Adams lying on the ground and Gerald standing over him with his leg drawn back.
Todd tackled Gerald, rolled him off of Adams, and the two landed in the ditch at
which point Gerald put a choke hold on Todd and asked him whether he "gives up."
¶29 Bob Richardson heard Todd say over the radio, "They have Charlie [Adams]
down." Richardson saw Adams lying on the ground and D.J. standing over him. He
could already see that Adams had a severe eye injury. Richardson saw Todd and
Gerald in the ditch and informed them that he would call the police. Appellants then
got in their vehicle and left. Neither Todd nor Richardson ever saw Adams hit, kick,
or fight in any way with either D.J. or Gerald. Adams came away from the incident
with a swollen black eye, a contusion to his cheek, and abrasions and a contusion to
his chest, whereas D.J. came away with no visible injuries, and Gerald came away
with only light bruising to his lower back.
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¶30 Appellants argue that their convictions were based on mere suspicion or
conjecture and, therefore, require reversal. State v. Phillips (1966), 147 Mont. 334,
340, 412 P.2d 205, 208. We do not agree. Although Appellants’ convictions were
based on circumstantial evidence, "we have held numerous times that circumstantial
evidence is sufficient to support a conviction." State v. Miller (1988), 231 Mont. 497,
511-12, 757 P.2d 1275, 1284. Montana law permits a jury to draw inferences from the
evidence presented at trial. Section 26-1-501, MCA. "‘Evidence’ is the means of
ascertaining in a judicial proceeding the truth respecting a question of fact, including
but not limited to witness testimony, writings, physical objects, or other things
presented to the senses." Section 26-1-101(2), MCA. Given the evidence presented in
this case, a rational jury could infer that Appellants were upset that their swift travel
on the road was impeded by Adams’ duties as a road grader operator, and that
Appellants took their anger and frustration out on Adams.
¶31 Appellants’ theory of self-defense is wholly dependent on their version of the
facts, which the jury was entitled to reject. "The weight of the evidence and the
credibility of the witnesses are exclusively within the province of the trier of fact;
when the evidence conflicts, the trier of fact determines which shall prevail." State v.
Bower (1992), 254 Mont. 1, 8, 833 P.2d 1106, 1111. It is the jury’s prerogative
whether to accept or reject a defendant’s claim of self-defense. State v. Crazy Boy
(1988), 232 Mont. 398, 401, 757 P.2d 341, 343. In this case, the jury weighed the
evidence, assessed the credibility of the witnesses, and found the State’s version of the
incident more credible than Appellants’. Viewing the evidence in a light most
favorable to the prosecution, we hold there existed sufficient evidence from which a
rational jury could find that Appellants injured Adams because of the discharge of
his duties or to prevent Adams from discharging his duties, and that Appellants were
not justified in the use of force against Adams.
Issue 2
¶32 Does the record support Appellants’ claims of instructional error?
¶33 Appellants’ argument regarding instructional error is unclear. Appellants frame
the issue in terms of whether the court erred in refusing to give an instruction on
justifiable use of force. However, the substance of Appellants’ argument claims that
the court erred in refusing to give an instruction on assault. We dispense with this
issue by first noting that the record shows that both the State and Appellants
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submitted the same instruction on justifiable use of force, and that the instruction
was given. Thus, it appears the first error of which Appellants speak did not occur.
We also note that Appellants did not include in the record on appeal any proposed
instruction on either justifiable use of force or assault. Rule 9(a), M.R.App.P.
provides in relevant part:
The original papers and exhibits filed in the district court, the transcript of
proceedings, if any, and a certified copy of the docket entries prepared by the
clerk of the district court shall constitute the record on appeal in all cases. It is
the duty of a party seeking review of a judgment, order or proceeding to
present the supreme court with a record sufficient to enable it to rule upon the
issues raised.
Appellants having failed to make an appropriate record on appeal, we cannot
consider their claims of instructional error.
Issue 3
¶34 Is Appellants’ constitutional challenge to § 45-7-102(1)(b), MCA, properly before this
Court when it was not raised below?
¶35 Appellants argue that § 45-7-102(1)(b), MCA, is unconstitutionally vague
because it fails to give reasonable notice of the prohibited conduct, or is
unconstitutionally overbroad because it covers protected conduct. Appellants’
constitutional challenge is not reviewable because it was not raised in the District
Court and may not be raised for the first time on appeal. See Sections 46-20-104(2)
and -701(2), MCA; State v. Woods (1997), 283 Mont. 359, 372, 942 P.2d 88, 96-97.
Although this Court recognizes the common law doctrine of plain error review, see
State v. Finley (1996), 276 Mont. 126, 137, 915 P.2d 208, 215, this case does not
present the "exceptional" case envisioned for plain error review. See State v. Sullivan
(1996), 280 Mont. 25, 31, 927 P.2d 1033, 1037; State v. Arlington (1994), 265 Mont.
127, 152, 875 P.2d 307, 322. Thus, we decline to address Appellants’ claim regarding
the constitutionality of § 45-7-102(1)(b), MCA.
¶36 Affirmed.
/S/ WILLIAM E. HUNT, SR.
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We Concur:
/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ JIM REGNIER
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