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No. 99-421
IN THE SUPREME COURT OF THE STATE OF MONTANA
2000 MT 33
298 Mont. 208
996 P. 2d 379
STATE OF MONTANA,
Plaintiff and Respondent,
v.
KURT DUNNETTE,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Mike Salvagni, Judge presiding
COUNSEL OF RECORD:
For Appellant:
Larry Jent, Williams, Jent & Dockins, Bozeman, Montana
For Respondent:
Joseph P. Mazurek, Montana Attorney General, Carol Schmidt, Assistant Montana Attorney General,
Helena, Montana; Marty Lambert, Gallatin County Attorney, Gary Balaz, Deputy Gallatin County
Attorney, Bozeman, Montana
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Submitted on Briefs: January 27, 2000
Decided: February 7, 2000
Filed:
__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.
¶1.The defendant, Kurt Dunnette (Dunnette), appeals from the sentence and judgment of
the District Court of the Eighteenth Judicial District, Gallatin County, dated May 21,
1999. On appeal Dunnette contends that the District Court violated the double jeopardy
clause of the Montana Constitution when it sentenced him to ten years for the offense of
criminal endangerment, a felony, § 45-5-207, MCA, and to an additional two years under
the weapons enhancement statute, § 46-18-221, MCA, for the use of a weapon in
committing the underlying offense. We affirm.
Background
¶2.On September 10, 1998, the State charged Dunnette, by information, with the charge of
criminal endangerment, a felony, in violation of § 45-5-207, MCA. Dunnette pleaded not
guilty and, following a jury trial on March 8 and 9, 1999, the jury found Dunnette guilty of
the offense of criminal endangerment.
¶3.The court sentenced Dunnette on May 7, 1999, to ten years in the Montana State Prison
with eight years suspended, upon various conditions. The court also sentenced Dunnette to
two years in the Montana State Prison with none suspended pursuant to the weapons
enhancement statute, § 46-18-221, MCA, for use of a weapon during the commission of
the offense. This additional sentence was ordered to run consecutively with the sentence
on the underlying offense.
¶4.Dunnette's conviction arose out of an incident on July 14, 1998, in Gallatin County.
Basically, Thomas and Susan Wade (the Wades) were traveling northbound on their
motorcycle on U.S. Highway 191. The Wades had to stop for construction and were
behind various motor vehicles, including Dunnette's. A flag person at the scene directed
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the Wades to drive to the head of the line. This apparently angered Dunnette and when the
Wades and Dunnette finally cleared the construction zone Dunnette began following the
Wades very closely in a confrontational manner. Dunnette gave the Wades "the finger."
The Wades were stopped by another construction flag person and Dunnette pulled up
behind them extremely close.
¶5.When the Wades and Dunnette again cleared the construction area, Dunnette followed
them very close. Dunnette passed the Wades and again gave them the finger. The Wades
returned the gesture and motioned Dunnette to pull off the road. Dunnette pulled in front
of the Wades with barely enough clearance, again gave the Wades the finger, and then
stuck his hand out the window and shot pepper spray toward the Wades. The pepper spray
struck the windshield of the Wades' motorcycle and hit both of the Wades in the face. The
Wades' eyes began to burn and water. Susan began to cough, gasp for air, and felt
nauseous.
¶6.The Wades were able to accelerate, however, and obtain the license plate number of
Dunnette's vehicle. After the Wades notified the authorities, Dunnette was ultimately
stopped.
Discussion
¶7. Did the District Court violate the double jeopardy provisions of the Montana
Constitution when it sentenced Dunnette for the offense of criminal endangerment and
then enhanced his sentence under the weapons enhancement statute for the use of a
weapon?
¶8.This Court reviews a criminal sentence only for legality (i.e., whether the sentence is
within the parameters provided by the statute). State v. Montoya, 1999 MT 180, ¶ 15, 295
Mont. 288, ¶ 15, 983 P.2d 937, ¶ 15.
¶9.Citing our decision in State v. Guillaume, 1999 MT 29, 293 Mont. 224, 975 P.2d 312,
Dunnette argues that in imposing the weapons enhancement, the District Court punished
him twice for the act charged in the Information. Dunnette reasons that the Information
stated that he committed the offense of criminal endangerment when he engaged in
aggressive tactics toward the Wades while driving his pickup on U.S. Highway 191 in
Gallatin County, in that he followed the Wades too closely in his truck, that he used his
vehicle to cut in front of the Wades too closely, and that he shot them with pepper spray.
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Dunnette thus concludes that it was impossible for him to commit the offense as charged
without using the weapons--either his vehicle or the pepper spray. He concludes that the
"underlying offense" required proof of the use of a weapon and that the enhancement of
his sentence, therefore, violated the double jeopardy provision of Article II, Section 25 of
the Montana Constitution.
¶10.We recently addressed this same argument in State v. Keith, 2000 MT 23, ___ Mont
___, ___ P.2d ___. In that case, Keith was convicted of felony criminal endangerment
under circumstances that involved her firing a handgun inside an apartment. The fourth
shot fired by Keith went through a desk and into a wall of the adjoining apartment. Keith,
¶¶ 6-7.
¶11.Keith advanced the same argument as Dunnette. Citing Guillaume, Keith contended
that since her conviction for criminal endangerment was based on her conduct of firing a
gun, she should not have been given an additional sentence for the use of that gun because
that would require punishing her twice for the same offense. Keith, ¶ 33.
¶12.We rejected Keith's argument citing our decision in Guillaume. We stated:
This Court agreed with Guillaume and held that the 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. We further explained:
The only factor raising Guillaume's charge from misdemeanor assault to felony assault
was his use of a weapon. We interpret this distinction between the two offenses, and the
different penalties imposed by each offense, as the legislature's way of punishing a
criminal defendant for use of a weapon in committing an assault. Thus, when the weapon
enhancement statute was applied to Guillaume's felony assault conviction, Guillaume was
subjected to double punishment for use of a weapon: once when the charge was elevated
from misdemeanor assault to felony assault, and again when the weapon enhancement
statute was applied. We agree with Guillaume that this form of double punishment is
exactly what double jeopardy was intended to prohibit. Guillaume, ¶ 18.
Keith, ¶ 36.
¶13.The offense of criminal endangerment is committed when a person knowingly
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engages in conduct that creates a substantial risk of death or serious bodily injury to
another. Section 45-5-207(1), MCA. We held in Keith that the statute defining criminal
endangerment does not require proof of the use of a weapon, nor did the use of a weapon
raise Keith's crime from a misdemeanor to a felony as in Guillaume. Keith, ¶ 37.
¶14.The same result obtains in the case at bar. Dunnette was convicted of criminal
endangerment. The statute defining this offense does not require proof of the use of a
weapon, nor did the use of a weapon raise Dunnette's crime from a misdemeanor to a
felony as in Guillaume. Moreover, as we stated in Keith, if we were to accept Dunnette's
argument, there would be a double jeopardy violation every time a court applied the
weapons enhancement statute to a felony offense. Keith, ¶ 38.
¶15.The fact that Dunnette used the weapon when he committed the offense of criminal
endangerment and was thus sentenced to an additional term under the weapons
enhancement statute did not result in multiple punishments for the same offense because
the offense of criminal endangerment, by its own terms, does not specifically increase a
defendant's punishment for the use of a weapon. Keith, ¶ 39.
¶16.Accordingly, as we did in Keith, we hold that the application of the weapons
enhancement statute to Dunnette's conviction for criminal endangerment did not subject
Dunnette to double punishments in violation of the double jeopardy provision of Article II,
Section 25 of the Montana Constitution.
¶17.Affirmed.
/S/ JAMES C. NELSON
We Concur:
/S/ J. A. TURNAGE
/S/ KARLA M. GRAY
/S/ TERRY N. TRIEWEILER
/S/ W. WILLIAM LEAPHART
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