State v. Weitzel

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No. 99-047

IN THE SUPREME COURT OF THE STATE OF MONTANA

2000 MT 86

STATE OF MONTANA,

Plaintiff and Respondent,

v.

RICHARD ALFRED WEITZEL,

Defendant and Appellant.

APPEAL FROM: District Court of the First Judicial District,

In and for the County of Lewis and Clark,

The Honorable Jeffrey Sherlock, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Thomas S. Winsor, Michael Scott Winsor, Winsor Law Firm, Helena, Montana

For Respondent:

Joseph P. Mazurek, Montana Attorney General, John Paulson, Assistant Montana
Attorney General, Helena, Montana; Mike McGrath, Lewis and Clark County Attorney,
Helena, Montana

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Submitted on Briefs: October 14, 1999
Decided: April 6, 2000

Filed:

__________________________________________

Clerk

Justice William E. Hunt, Sr. delivered the Opinion of the Court.

¶1 Richard Alfred Weitzel (Weitzel) appeals from a jury verdict finding him guilty of
felony assault and the corresponding sentence imposed by the First Judicial District Court,
Lewis and Clark County. We affirm the verdict but reverse the District Court's sentence
enhancement for use of a weapon during the commission of an offense.

¶2 Weitzel raises three issues on appeal:

¶3 (1) Was there sufficient evidence to sustain the conviction for felony assault?

¶4 (2) Did the District Court abuse its discretion by allowing rebuttal evidence showing
that Weitzel had pawned a handgun in July of 1996?

¶5 (3) Should this case be remanded to the District Court for resentencing in light of the
recent decision in State v. Guillaume, 1999 MT 29, 293 Mont. 224, 975 P.2d 312?

Factual and Procedural Background

¶6 On April 10, 1998, the State of Montana (the State) filed an Information charging
Weitzel with two counts of felony assault and one count of felony conspiracy to sell
dangerous drugs. Count I alleged that Weitzel had pointed a handgun at the head of Jeffrey
Brewer (Brewer), causing him reasonable apprehension of serious bodily injury. Count II
alleged that Weitzel had pointed a handgun at Veronica Jenkins (Jenkins), causing her
reasonable apprehension of serious bodily injury. And Count III alleged that Weitzel had
agreed with Cynthia Thilmony (Thilmony) to the sale of marijuana and provided her with
$800 cash for that purpose. Weitzel pleaded not guilty to the charges.

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¶7 The events giving rise to the charges against Weitzel occurred on March 12, 1998, in
Helena, Montana. At that time, Weitzel was a self-employed flooring contractor. He lived
in a house on Choteau Street and was engaged to Judy Weidner (Weidner). Weidner's
nineteen-year-old niece, Thilmony, lived nearby in an apartment on Broadwater Circle. On
March 12, Thilmony called Weitzel at his house and asked if she could come over and use
his washing machine to do some laundry. Weitzel agreed and Thilmony arrived at his
house around noon. During this visit, according to Thilmony, Weitzel asked her if she
could procure a half-pound of marijuana for him to purchase. Thilmony agreed to make
some inquiries on behalf of Weitzel.

¶8 Thilmony then called her boyfriend, Brewer, who in turn called two friends, Mike
Zandhuisen (Zandhuisen) and Jeremy Younkin (Younkin). Younkin stated that he could
obtain a half-pound of marijuana for $800; Brewer related this information to Thilmony,
who informed Weitzel. Weitzel allegedly gave Thilmony $800, and she turned the money
over to Brewer to make the purchase of marijuana. Brewer then gave Younkin $700 cash,
keeping $100 for himself. However, after obtaining the $700 from Brewer, Younkin and
Zandhuisen decided to steal the money from Brewer and split it between themselves.

¶9 At about 6:15 p.m., Weitzel allegedly first learned that $800 cash was missing from his
wallet, which had been sitting on a desk in his home office throughout the day, and he
called Weidner to inform her of the fact. Weitzel and Weidner assumed that the culprit
was Thilmony. Sometime after 9:00 p.m., Brewer went to Jenkins' apartment on
Broadwater Circle and called Zandhuisen, who then informed Brewer that he and Younkin
did not have the money or the drugs because the $700 had been "ripped off" by their
supplier. Subsequently, Thilmony went to her apartment and was confronted by Weitzel
about the missing cash. According to Weitzel, Thilmony admitted to stealing the money
and giving it to Brewer to purchase marijuana.

¶10 Weitzel then decided to find and confront Brewer. Thilmony drove Weitzel to Jenkins'
apartment. According to Thilmony, Weitzel had a handgun in a shoulder holster under his
jacket, and he informed Thilmony that someone's "going to die tonight." Upon arriving,
Weitzel got out of the car, walked into Jenkins' apartment, and pinned Brewer's head
against the wall with a dark object, demanding his money back and shouting obscenities.
Brewer, Zandhuisen, Scott Smith (Smith), and Rob Hollow (Hollow) subsequently
escaped on foot, while Jenkins remained at her apartment. Weitzel left Jenkins' apartment
in Thilmony's car, but asked her to drop him off at Weidner's apartment. About fifteen

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minutes thereafter, Weitzel showed up at Thilmony's apartment on foot, carrying a cell
phone instead of a gun.

¶11 At 10:08 p.m., the Helena Police Department received a call from Thilmony's mother,
who stated that she believed Thilmony was in danger and expressed concern that there
might be a gun involved. Upon responding to the call and arriving at Thilmony's
apartment on Broadwater Circle, the police encountered Weitzel at the front door. Weitzel
was immediately patted down but the police found no firearm or holster on his person. The
police advised Weitzel of the concern that their might be a gun involved, to which Weitzel
responded that the confusion may have been caused by his cell phone. When questioned,
Thilmony told the police that $800 had been stolen from her and that Weitzel was helping
her to get the money back. Weitzel did not contradict Thilmony's story at that time.

¶12 A few days after this incident, Thilmony told the police about the alleged drug deal
and the events leading up to the assault by Weitzel. Weitzel eventually told the police that
Thilmony had taken the $800 from his apartment, and that he had gone with Thilmony to
Jenkins' apartment in an attempt to recover the money. Weitzel denied that he had used a
gun to threaten Brewer, instead claiming that he had held his cell phone against Brewer's
face during the confrontation at Jenkins' apartment.

¶13 The other witnesses to the incident recalled varying, and often contradictory, details
about the assault. Although Thilmony did not initially represent to police that a gun had
been involved in the incident, she subsequently testified that Weitzel had been holding a
handgun when he entered Jenkins' apartment on the night in question. Zandhuisen claimed
that after the incident with Weitzel, Brewer had injuries consistent with having been hit in
the head with a gun. However, Brewer denied the same at trial. Smith and Hollow also
testified, consistent with Zandhuisen, that Weitzel had wielded a gun against Brewer on
the night of March 12. Immediately following the assault incident, Jenkins had excitedly
told a neighbor that Weitzel had come into her apartment and thrown Brewer against the
wall, but at that time she never mentioned that Weitzel had a gun. However, Jenkins
subsequently stated to police that Weitzel had threatened her with a gun. Shortly after the
incident, Jenkins mysteriously moved out of Montana.

¶14 All of the State's key witnesses (excluding the police) were friends prior to the
incident. The authorities did not search Weitzel's home for any guns, nor did they search
Weidner's apartment for any handguns belonging to Weitzel. At trial, Weidner testified
that she did not believe that Weitzel owned a handgun. Weitzel's criminal record consisted

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of only two misdemeanors, neither of which involved drugs or violence. Thilmony was
charged with conspiracy but pleaded to theft in return for her testifying against Weitzel.
Zandhuisen was also charged with conspiracy but, notwithstanding the absence of an
agreement to testify against Weitzel, the charges against him were dismissed. Brewer was
not charged in connection with this case.

¶15 Prior to trial, Weitzel gave notice that he would present evidence of his good character
and assert the defense of justifiable use of force. At trial, Weitzel testified that he had last
purchased a handgun in March or April of 1996 and had given it to his brother at that time.
On cross-examination, Weitzel clarified that he had purchased a .9mm Baretta as a belated
birthday present for his brother in 1996, and further denied having any handguns himself.
Weitzel's brother testified at trial about the gift of the pistol in 1996 and also testified that
Weitzel did not have any handguns.

¶16 At the close of Weitzel's case-in-chief, the State moved to present rebuttal testimony
to the effect that Weitzel had pawned and then subsequently retrieved a handgun from a
pawnshop in 1996. That handgun was a .45 caliber Llama similar in appearance to the one
described by the State's witnesses. The State explained that it had not known prior to trial
what the testimony of Weitzel and his brother would be concerning Weitzel's ownership of
handguns, and offered the rebuttal evidence to impeach Weitzel's credibility. The District
Court overruled Weitzel's objections and permitted the State to present the rebuttal
evidence in the form of pawn shop records. The court also allowed the State to show the
jury an actual .45 caliber Llama to demonstrate the type of firearm that Weitzel had owned
in 1996.

¶17 On August 26, 1998, the jury returned its verdict, unanimously finding Weitzel guilty
of felony assault under Count I, and not guilty of conspiracy to commit the criminal sale
of dangerous drugs under Count III. The jury was unable to reach a verdict as to the felony
assault charge alleged in Count II. Following the verdict, Weitzel filed a "Motion for
Judgment Notwithstanding the Verdict," which was denied by the District Court. On
October 23, 1998, the District Court sentenced Weitzel to the Montana State Prison for a
term of four years for Count I, felony assault, with all of the four-year term suspended
upon certain conditions. However, the District Court further sentenced Weitzel to a
mandatory term of two years at the Montana State Prison, pursuant to § 46-18-221, MCA,
for using a weapon during the commission of the felony assault.

Discussion

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¶18 (1) Was there sufficient evidence to sustain the conviction for felony assault?

¶19 At the conclusion of the State's case, the District Court denied Weitzel's motion to
dismiss on the basis of insufficient evidence. A motion to dismiss for insufficient evidence
should be granted by the district court "'only where there is no evidence upon which a trier
of fact could base a verdict.'" State v. Miller (1988), 231 Mont. 497, 509, 757 P.2d 1275,
1282-83 (quoting State v. Matson (1987), 227 Mont. 36, 42, 736 P.2d 971, 974). This
Court reviews the denial of such a motion in the same manner that we review the
sufficiency of evidence supporting a jury verdict in a criminal case. That is, we review the
record to determine whether, after viewing the evidence in a 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. Berger, 1998 MT 170, ¶ 25, 964 P.2d 725, ¶ 25, 290
Mont. 78, ¶ 25. It is within the sound discretion of the trial court to determine whether to
dismiss an action at the close of the State's case for insufficient evidence, and we will not
disturb such a ruling in the absence of an abuse of discretion. State v. Miller, 1998 MT
177, ¶ 21, 290 Mont. 97, ¶ 21, 966 P.2d 721, ¶ 21 (citing § 46-16-403, MCA; Miller, 231
Mont. at 509, 757 P.2d at 1282).

¶20 Weitzel, while acknowledging that witness credibility and weight of the evidence is
the province of the jury, contends that there was insufficient evidence to convict him of
felony assault because the testimony of all of the State's witnesses, with the exception of
the police, was lacking in credibility. Weitzel points to "numerous inconsistencies" in the
stories of the State's witnesses, such as the contradictory "time-line" put forward by those
witnesses as to the events of March 12, and asserts that these conflicts in the testimony
render the underlying felony assault conviction invalid. However, Weitzel's contentions
are unavailing and need not be repeated in detail here. " 'It is within the province of the
finder of fact to weigh the evidence presented and determine the credibility of the witness
[es]; in the event of conflicting evidence on factual issues, the trier of fact determines
which will prevail.' " State v. Johnson, 1998 MT 289, ¶ 41, 291 Mont. 501, ¶ 41, 969 P.2d
925, ¶ 41 (quoting State v. Sattler, 1998 MT 57, ¶ 55, 288 Mont. 79, ¶ 55, 956 P.2d 54, ¶
55).

¶21 Weitzel was convicted of felony assault under § 45-5-202, MCA (1997), pursuant to
which the State was required to prove beyond a reasonable doubt that Weitzel caused
"reasonable apprehension of serious bodily injury in another by use of a weapon." Section
45-5-202(2)(b), MCA (1997). As Weitzel recognizes, there was testimony from five
separate witnesses for the State to the effect that Weitzel assaulted Brewer with a handgun

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in Jenkins' apartment on the evening of March 12, 1998. Our function on appellate review
is limited to determining whether the jury verdict is supported by sufficient evidence, not
whether there was evidence which could support a different verdict. See Johnson, ¶ 41
(quoting Sattler, ¶ 60). Although the evidence could support a different verdict in this
case, it is not this Court's role to impose our judgment for that of the trier of fact. That the
jury chose to believe the version of the facts put forward by the State's witnesses, rather
than Weitzel's depiction of the events that occurred on March 12, was within its
prerogative as the trier of fact. Furthermore, as the State points out, the mere fact that a
defendant's testimony conflicts with that of other witnesses does not, by itself, render the
evidence insufficient to support the conviction. See Miller, ¶ 25 (quoting State v. Bower
(1992), 254 Mont. 1, 8, 833 P.2d 1106, 1111).

¶22 The testimony of the five witnesses presented a more than sufficient basis from which
the jury could determine that Weitzel had used a gun rather than a cell phone to commit
the assault on Brewer. When viewing the evidence in a light most favorable to the State,
we determine that any rational trier of fact could have found the essential elements of
felony assault beyond a reasonable doubt. We hold that there was sufficient evidence to
support Weitzel's conviction for felony assault. We further hold, therefore, that the District
Court did not abuse its discretion in denying Weitzel's motion to dismiss for insufficient
evidence.

¶23 (2) Did the District Court abuse its discretion by allowing rebuttal evidence showing
that Weitzel had pawned a handgun in July of 1996?

¶24 We review a district court's evidentiary rulings for abuse of discretion. State v. Lantis,
1998 MT 172, ¶ 52, 289 Mont. 480, ¶ 52, 962 P.2d 1169, ¶ 52. The decision to admit
rebuttal evidence is a matter that rests largely within the discretion of the trial court, and
we will not overturn such a determination unless an abuse of discretion is shown.
Morrison v. City of Butte (1967), 150 Mont. 106, 115, 431 P.2d 79, 83-84.

¶25 Before trial, Weitzel provided notice to the State that he would present the defense of
justifiable use of force and that he would present evidence of his good character. In his
trial testimony, Weitzel claimed that he does not presently own a handgun or a shoulder
holster. However, Weitzel went on to describe how he had purchased a handgun in March
or April of 1996 as a belated birthday present for his brother. Similarly, Weitzel's brother
testified about the gift of a pistol from Weitzel in 1996 and also corroborated that Weitzel
does not presently own or possess any handguns. Over Weitzel's objections, the District

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Court permitted the State to introduce pawn shop records in rebuttal showing that Weitzel
had pawned a handgun on July 2, 1996, and then retrieved it on July 13, 1996. The court
ruled that the rebuttal evidence was "very relevant" to the question of Weitzel's credibility.

¶26 On appeal, Weitzel contends that the District Court abused its discretion in permitting
the State to introduce the pawn shop records in rebuttal because there was "no basis" in the
record for the introduction of that evidence. Weitzel also argues that the court abused its
discretion in admitting the evidence because the prosecution failed to discharge its
statutory duty to disclose the pawn shop records in advance of trial as required by § 46-15-
322, MCA, and Rule 404(b), M.R.Evid. Lastly, Weitzel claims that the admission of the
rebuttal evidence was improper pursuant to Rule 608, M.R.Evid. We address each of
Weitzel's contentions in turn.

¶27 Weitzel's argument that there was "no basis" in the record for the introduction of the
rebuttal evidence is without merit. Weitzel testified at trial as follows:

Q: Do you own . . . a handgun?

A: No, I do not.

Q: Do you own a shoulder holster?

A: No, I do not.

....

Q: Have you ever purchased a handgun?

A: Yes.

Q: Where is that handgun?

A: Should be at my brother's house.

Q: How long ago did you purchase that handgun?

A: March or April of '96.

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Q: When did you give it to your brother Mark?

A: March or April of '96.

Q: Has that firearm been in your possession at any time since March or

April of 1996?

A: No.

r ¶Weitzel then testified, on cross-examination, as follows:

Q: And you don't have any handguns?

A: No, sir, I do not.

Q: I think you testified that you bought one once and gave it to your brother?

A: Yes, I did.

Q: It was a birthday or something?

A: Yes, I did.

Q: You said it was in . . . March of '96?

A: I think it was March or April of '96.

When questioned, Weitzel's brother corroborated that Weitzel had purchased a .9mm
handgun as a belated birthday present for him in March or April of 1996. When asked
whether Weitzel owns any handguns, Weitzel's brother responded in the negative.

¶29 Weitzel takes the position that since he did not testify that he had never owned a
handgun, it was improper for the State to introduce rebuttal testimony to the effect that
Weitzel had been engaged in a pawn shop transaction involving a handgun in mid-1996.
However, we agree with the State that Weitzel "opened the door" to the rebuttal evidence
by choosing to testify as to his gun ownership, including the purchase of a handgun for his
brother in early-1996. More importantly, as the State suggests, the testimony of Weitzel
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and his brother left the jury with the misleading impression that Weitzel had purchased
only one handgun in the past as a gift for his brother. The plain implication of the
testimony presented was that Weitzel had last purchased a handgun in early-1996 and had
not owned any handguns since that time. Thus, the State's pawn shop evidence was
properly admitted to rebut that misimpression, and to thereby impeach Weitzel's
credibility, by showing that Weitzel had pawned and then retrieved a handgun shortly after
the alleged gift and less than two years before the assault incident.

¶30 Regarding the alleged failure of the State to give notice of the rebuttal testimony, we
also conclude that Weitzel's position must fail. Section 46-15-322, MCA, provides in
relevant part:

Disclosure by prosecution. . . .

....

(6) The prosecutor shall furnish to the defendant no later than 5 days before trial or
at a later time as the court may for good cause permit, together with their statements,
a list of the names and addresses of all persons whom the prosecutor intends to call
as rebuttal witnesses to evidence of good character or the defenses of alibi,
compulsion, entrapment, justifiable use of force, or mistaken identity or the defense
that the defendant did not have a particular state of mind that is an element of the
offense charged.

Section 46-15-322(6), MCA.

¶31 As Weitzel indicates, the duty of pre-trial disclosure by the prosecution under § 46-15-
322, MCA, is broader than that required by Brady v. Maryland (1963), 373 U.S. 83, 83 S.
Ct. 1194, 10 L.Ed.2d 215. Indeed, the statutory provisions mandate the disclosure of all
material and information within the prosecutor's possession and control, regardless of
whether inculpatory or exculpatory in nature. See State v. Licht (1994), 266 Mont. 123,
129, 879 P.2d 670, 673-74. Weitzel further points out that the prosecution's obligation of
disclosure extends to material and information that is in the possession or control of any
member of the prosecutor's staff or any other persons who have participated in the
investigation or evaluation of the case. See § 46-15-322(4), MCA.

¶32 Here, the record shows that an investigating officer first learned of Weitzel's 1996

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pawn shop transaction approximately a month prior to trial and that the prosecutor himself
knew of the existence of the pawn shop records about two weeks before trial.
Nevertheless, that does not mean that the State was under an obligation to disclose this
information before trial. As we have indicated in the past, the prosecution is under no
statutory duty to provide pre-trial notice of a witness called to impeach the credibility of a
defense witness. See State v. Hildreth (1994), 267 Mont. 423, 430-31, 884 P.2d 771, 775-
76.

¶33 In Hildreth, the defendant raised the defense of alibi at trial. In rebuttal, the State
called three witnesses. The defendant in Hildreth then challenged those witnesses on
appeal, contending that the witnesses had been called to rebut his alibi defense but that the
State had failed to discharge its statutory duty to provide written, pre-trial disclosure of
these witnesses as required by § 46-15-322(6), MCA. Hildreth, 267 Mont. at 430, 884
P.2d at 775-76. This Court, noting that two of the State's three "rebuttal witnesses" were
called to impeach the testimony of defense witnesses rather than rebut the alibi defense
itself, impliedly held that the prosecution was under no duty pursuant to § 46-15-322(6),
MCA, to provide notice of impeachment witnesses prior to trial. See Hildreth, 267 Mont.
at 430, 884 P.2d at 775-76. Regarding the third witness, we observed that the State had,
without prior notice, attempted to solicit testimony from the witness to rebut the
defendant's alibi defense in circumvention of the statutory "notice requirements," but we
held, nonetheless, that the admission of the rebuttal testimony was harmless because it had
not prejudiced the defendant. Hildreth, 267 Mont. at 430-31, 884 P.2d at 776. Hildreth
clearly implies that the prosecution is under no statutory duty to provide pre-trial notice of
witnesses that may be utilized solely to impeach the credibility of defense witnesses.

¶34 Furthermore, even assuming for the sake of argument that the pawn shop records
could be characterized as evidence falling within the notice requirements of § 46-15-322
(6), MCA, it is evident that the State provided notice to Weitzel at the "earliest
opportunity." See State v. Madera (1983), 206 Mont. 140, 147-48, 670 P.2d 552, 556; cf.
State v. Sage (1986), 221 Mont. 192, 196-97, 717 P.2d 1096, 1098-99 (holding that the
prosecution's statutory duty of providing notice of rebuttal witnesses does not arise until
the defense provides notice of its intent to claim a particular affirmative defense).
Weitzel's pre-trial notice did not provide the State with any details about the "substance of
the testimony" to be presented at trial. See Madera, 206 Mont. at 148, 670 P.2d at 556.
There was no indication that, in presenting evidence of good character or the defense of
justifiable use of force, Weitzel would choose to testify as to his handgun ownership.
Therefore, the State had no reason to know, in advance of trial, that Weitzel would defend

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against the charges by claiming that he did not own or possess any handguns. It would be
"illogical" to hold that the prosecution was under a duty to disclose a list of witnesses
intended to rebut a particular defense where the prosecution "did not even know about this
defense until trial began." Cf. Sage, 221 Mont. at 197, 717 P.2d at 1099.

¶35 We agree with the State that it was therefore entitled to rebut the testimony of Weitzel
and his brother with relevant evidence to the contrary. Indeed, the pawn shop rebuttal
evidence did not become relevant until Weitzel and his brother testified at trial as to
Weitzel's gun ownership. Although Weitzel questions the relevance of the rebuttable
evidence, we agree with the District Court that the pawn shop records were highly relevant
to the question of Weitzel's credibility. See State v. Arlington (1994), 265 Mont. 127, 141,
875 P.2d 307, 315 (quoting Rule 401, M.R.Evid.) (recognizing that relevant evidence may
encompass " 'evidence bearing upon the credibility of a witness' ").

¶36 It is clear that Weitzel's defense strategy was to suggest to the jury that he did not own
or possess any handguns and had last purchased a handgun as a gift for his brother in early-
1996. Weitzel made a tactical decision to open the door to the issue of gun ownership, and
by choosing to testify to the purchase of the handgun in 1996 without disclosing other gun
transactions in which he had been involved, Weitzel assumed the risk that his defense
strategy would backfire. In short, "[h]e took a chance and his strategy failed. He was
caught in a trap of his own making, and no . . . statutory impurity arose thereby." Madera,
206 Mont. at 148, 670 P.2d at 556.

¶37 Nor do the pawn shop records constitute "other acts" evidence falling under Rule 404
(b), M.R.Evid., and the notice requirements of the so-called "Modified Just Rule." See
State v. Just (1979), 184 Mont. 262, 602 P.2d 957, as modified by State v. Matt (1991),
249 Mont. 136, 814 P.2d 52. The pawn shop evidence did not show other crimes, wrongs,
or acts, and was introduced by the State for the sole purpose of challenging Weitzel's
credibility. Moreover, as the State correctly argues, where a defendant has " 'opened the
door' " to the question of his or her character, as Weitzel did here, the State is not
precluded from presenting rebuttal evidence pursuant to Rule 404(a)(1), M.R.Evid.,
without adhering to the notice requirements of the Modified Just Rule. See Arlington, 265
Mont. at 156-57, 875 P.2d at 324-25; see also State v. Carter (1997), 285 Mont. 449, 458,
948 P.2d 1173, 1178; State v. McQuistron (1996), 277 Mont. 397, 403, 922 P.2d 519, 523;
State v. Newman (1990), 242 Mont. 315, 320, 790 P.2d 971, 974. Weitzel, by presenting
testimony about his history of handgun ownership as a character trait, opened the door to
the State's rebuttal evidence showing that Weitzel presented a partial, and thus misleading,

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history of his gun ownership.

¶38 Lastly, we decline to address Weitzel's argument that the admission of the pawn shop
evidence violated Rule 608, M.R.Evid. The State points out that Weitzel failed at trial to
raise Rule 608, M.R.Evid., as a basis for exclusion of the evidence. As a general rule, this
Court will consider for review only those issues raised before the trial court; we will not
review an issue where the defendant has failed to present the issue to the district court. See
State v. Herrera, 1998 MT 173, ¶¶ 17-18, 289 Mont. 499, ¶¶ 17-18, 962 P.2d 1180, ¶¶ 17-
18; §§ 46-20-104 and 46-20-701, MCA. A district court "'will not be put in error where it
was not accorded an opportunity to correct itself.'" State v. Long (1986), 223 Mont. 502,
506, 726 P.2d 1364, 1366 (quoting State v. Patton (1979), 183 Mont. 417, 422, 600 P.2d
194, 197). None of the circumstances outlined in § 46-20-701(2), MCA, exist here, nor do
either of the parties urge this Court to reach this issue under common law plain error
review. Therefore, Weitzel's failure to raise Rule 608, M.R.Evid., before the District Court
constitutes a waiver of that claim on appeal.

¶39 Given the nature and circumstances of Weitzel's testimony in this case, we hold that
the District Court did not abuse its discretion by permitting the State to introduce the pawn
shop evidence to impeach Weitzel's credibility.

¶40 (3) Should this case be remanded to the District Court for resentencing in light of the
recent decision in State v. Guillaume, 1999 MT 29, 293 Mont. 224, 975 P.2d 312?

¶41 In Guillaume, this Court confronted the question of whether the application of
Montana's weapon enhancement statute, § 46-18-221, MCA (1997), to a conviction for
felony assault pursuant to § 45-5-202(2)(b), MCA (1997), violated the double jeopardy
provision of Article II, Section 25 of the Montana Constitution. Guillaume, ¶ 2. Reasoning
that the Montana Constitution "affords greater protection against multiple punishments for
the same offense" than does the United States Constitution, this Court held that
"application of the weapon enhancement statute to felony convictions where the
underlying offense requires proof of use of a weapon violates the double jeopardy
provision of Article II, Section 25 of the Montana Constitution." Guillaume, ¶ 16.

¶42 Notwithstanding the absence of a double jeopardy objection below, Weitzel asks this
Court to apply Guillaume on appeal and conclude that the District Court's sentence
enhancement on the basis of § 46-18-221, MCA (1997), violates the multiple punishments
proscription of the Montana Constitution. Weitzel, like the defendant in Guillaume, was

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convicted of felony assault under § 45-5-202(2)(b), MCA (1997), for causing reasonable
apprehension of serious bodily injury in another by "use of a weapon," and his sentence
was then enhanced pursuant to § 46-18-221(1), MCA (1997), for having "used
a . . . dangerous weapon" during the commission of that offense. As in Guillaume, since
use of a weapon was an element of the underlying felony assault conviction, application of
the weapon enhancement statute effectively punished Weitzel twice for use of a weapon in
violation of Article II, Section 25 of the Montana Constitution.

¶43 Even though Weitzel failed to raise the double jeopardy issue in the District Court
proceedings, the State concedes, and we agree, that this case must be remanded for
resentencing in light of Guillaume. This Court has already invoked plain error review to
reach the Guillaume issue on direct appeal, as the State indicates, because "[w]hether
multiple punishments have been imposed in violation of a defendant's fundamental right to
be free from double jeopardy brings into question the fundamental fairness of the
proceedings and the integrity of the judicial process." State v. Brown, 1999 MT 31, ¶ 12,
293 Mont. 268, ¶ 12, 975 P.2d 321, ¶ 12; see also State v. Roullier, 1999 MT 37, ¶ 25, 293
Mont. 304, ¶ 25, 977 P.2d 970, ¶ 25; State v. Aguilar, 19/

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