file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-496%20Opinion.htm
No. 99-496
IN THE SUPREME COURT OF THE STATE OF MONTANA
2001 MT 97
STATE OF MONTANA,
Plaintiff/Respondent,
v.
RAYMOND LOPEZ,
Defendant/Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Kenneth R. Neill, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Barbara E. Bell, Bell & Marra, Pllc, Great Falls, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General; Jennifer M. Anders,
Assistant Attorney General, Helena, Montana
Submitted on Briefs: December 29, 2000
Decided: June 7, 2001
Filed:
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-496%20Opinion.htm (1 of 8)3/28/2007 11:39:43 AM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-496%20Opinion.htm
__________________________________________
Clerk
Justice Terry N. Trieweiler delivered the Opinion of the Court.
¶1 Raymond Lopez was charged by Information filed in the District Court for the Eighth
Judicial District in Cascade County with Aggravated Assault in violation of §45-5-202(1),
MCA (1997); Felony Assault, in violation of §45-5-202(2)(a), MCA (1997); Partner or
Family Member Assault, in violation of §45-5-206(1)(a), MCA; Kidnaping, in violation of
§45-5-302, MCA (1997); three counts of Criminal Mischief, in violation of §45-6-101(1)
(a), MCA (1997); two counts of Aggravated Burglary, in violation of §45-6-204(2)(a),
MCA (1997); and two counts of Burglary, in violation of §45-6-204, MCA (1997). Prior
to trial, Lopez filed a Motion to Strike the Jury. The District Court denied that motion.
Before the case was submitted to the jury, the District Court dismissed the aggravated
assault charge and one count of aggravated burglary because of insufficient evidence.
Lopez was found guilty of all other charges except for one count of burglary. For the acts
which served as the basis of that charge, he was found guilty of criminal trespass. On
appeal, Lopez contends that the jury was improperly summoned and that both counts of
aggravated burglary and the charge of felony assault against John Hendricks should have
been dismissed for lack of evidence. We reverse the District Court and remand for a new
trial.
¶2 Lopez asserts two issues on appeal:
¶3 (1) Did the District Court err when the Court denied the defendant's Motion to Strike
the Jury?
¶4 (2) Was there sufficient evidence to support convictions for felony assault and
aggravated burglary?
FACTUAL BACKGROUND
¶5 Rita Henderson is the common law wife of Raymond Lopez. They have two children.
On December 9, 1997, Rita and the children were staying at the home of her sister, Judy
Carrier. That morning, Lopez went to Judy's home, looking for Rita. He became enraged
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-496%20Opinion.htm (2 of 8)3/28/2007 11:39:43 AM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-496%20Opinion.htm
when neither Rita nor Judy would let him in. He started yelling and screaming for Rita.
Finally, he broke a kitchen window which enabled him to unlock the kitchen door. When
Rita realized that he was coming in, she ran to the bathroom. Judy called the police and
reported that Lopez had broken into her house. Lopez ran to and apparently entered the
bathroom. According to Judy, she heard Lopez hitting Rita. Judy heard a thud. Then,
Lopez ran out of the bathroom and left the house. Rita came out of the bathroom and told
Judy that Lopez had punched her in the face, and caused her to fall and hit her head on the
bathtub.
¶6 Officer William Ramsey responded to Judy's call. Rita explained to Officer Ramsey
that Lopez broke into the house and followed her into the bathroom where he started to hit
her. Later that day, Rita went to the hospital because the pain in her neck was so severe.
The doctor who examined her told her that she had a fractured neck, and would have to
wear a neck brace.
¶7 Lopez returned to the house at around 10 o'clock that morning after the police had left.
He told Judy that he wanted to talk to Rita but Judy refused to see him. Judy threatened to
call the police but Lopez told her that he would cut the phone cord if she attempted to do
so. She left the house and went to a neighbor's home to call the police. Officer John Sewell
responded to her call. He watched Lopez enter the house, in the same manner in which he
had gained access earlier. Officer Sewell could hear Rita and Lopez arguing. He watched
as Lopez dragged Rita outside the house. He could hear Rita tell Lopez to stop. Although
it was the middle of December, he saw that she was not wearing shoes or a coat. Officer
Sewell approached Lopez and told him to drop to the ground. Lopez refused but released
Rita. Another policeman, Officer Ramsey arrived on the scene. The two officers cornered
Lopez and forced him to surrender.
¶8 The day before, on December 8, 1997, Bruce Jorgenson was watching television with
his girlfriend when the front door to his apartment was forced open. A man holding a knife
asked where Rita was and then abruptly left when he realized that Rita was not in the
apartment.
¶9 A couple minutes later, in the same building, the front door to John Hendricks'
apartment was also forced open. As Hendricks jumped towards the door, the man stabbed
Hendricks in the chest and yelled, "Where's Rita?" Officer Paul Smith was dispatched to
the apartment building, and took statements from both men.
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-496%20Opinion.htm (3 of 8)3/28/2007 11:39:43 AM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-496%20Opinion.htm
¶10 Lopez was charged by Information on December 31, 1997 with aggravated assault,
felony assault, family member or partner assault, kidnaping, three counts of criminal
mischief, two counts of aggravated burglary and two counts of burglary.
¶11 The Clerk summoned the jury by telephone. Lopez made a motion to the Court to
Strike the Jury. The Court denied the motion and proceeded with the trial. The Court
dismissed the aggravated assault charge and one count of aggravated burglary because
there was insufficient evidence. The jury then, found Lopez guilty of all counts, except for
one count of burglary. For the acts which formed the basis for that charge, he was
convicted of criminal trespass.
DISCUSSION
ISSUE ONE
¶12 Did the District Court err when the Court denied the defendant's Motion to Strike the
Jury?
¶13 The District Court's decision to deny Lopez's motion to strike is based on its
conclusion of law. We review conclusions of law to determine whether they are correct.
State v. Anderson (1997), 282 Mont. 41, 43, 934 P.2d 1037, 1038.
¶14 Lopez asserts that the District Court erred when it denied his motion to strike the jury
because the manner in which the jury was summoned violated §3-15-505, MCA (1997).
This statute provides that:
[t]he clerk shall serve notice by mail on the persons drawn as jurors and require
response thereto by mail as to their qualifications to serve as trial jurors. He may
attach to the notice a jury questionnaire and a form for an affidavit claiming an
excuse as provided for in 3-15-313. If a person fails to respond to the notice, the
clerk shall certify the failure to the sheriff, who shall then serve notice personally on
such person and require a response to the notice.
Section 3-15-505, MCA (1997). However, in this case, the jurors were notified by
telephone, rather than by mail or in person.
¶15 The State concedes that a reversal is warranted in light of our decision in State v.
LeMere, 2000 MT 45, 298 Mont. 358, 2 P.3d. 204. The facts of each case are similar. The
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-496%20Opinion.htm (4 of 8)3/28/2007 11:39:43 AM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-496%20Opinion.htm
jurors in both cases were notified by telephone, contrary to the statutory requirements.
¶16 We concluded in LeMere that "telephone summoning not only frustrates the random
nature of the selection process, but also undermines the principle of granting juror excuses
only on the basis of objective criteria." LeMere, ¶73. The plain language of §3-15-505
does not permit the clerk to utilize the telephone in summoning a new panel of trial jurors.
"The fundamental purpose of the jury selection statutes is to provide random selection of
jurors from the entire panel or array, . . .thus securing a fair and impartial jury." ¶70.
¶17 Therefore, we reverse and remand for a new trial, based on our decision in LeMere.
ISSUE TWO
¶18 Was there sufficient evidence to support conviction for felony assault and aggravated
burglary?
¶19 The District Court denied Lopez's motion to dismiss after the close of the State's case.
The decision to grant or deny a motion to dismiss lies within the sound discretion of the
trial judge and will only be disturbed on appeal when the trial court abused its discretion.
State v. White Water (1981), 194 Mont. 85, 87, 634 P.3d 636, 637.
¶20 Lopez asserts that the District Court erred when it allowed three charges to go the
jury: one count of felony assault and two counts of aggravated burglary. Lopez asserts that
the State did not meet its burden of proving each of these three charges, and therefore,
according to Lopez, he should not be retried any of these charges.
¶21 Lopez moved the court for a directed verdict on both counts of aggravated burglary
and the felony assault charge. A district court should grant a directed verdict only when
there is no evidence to support a guilty verdict. State v. Campbell (1996), 278 Mont. 236,
246, 924 P.2d 1304, 1310-1311. Although the Court declined to dismiss the felony assault
charge and one count of aggravated burglary based on Lopez's alleged entry to John
Hendricks's apartment, the Court did dismiss the aggravated burglary count based on
alleged entry of Jorgenson's apartment. Therefore, remanding the dismissed charge for
retrial would violate Lopez's constitutional protection against double jeopardy, see State v.
Lundblade (1986), 221 Mont. 185, 187, 717 P.2d 575, 577, and we only consider whether
the District Court abused its discretion when it submitted the felony assault charge and
aggravated burglary charge of Henderson's apartment to the jury.
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-496%20Opinion.htm (5 of 8)3/28/2007 11:39:43 AM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-496%20Opinion.htm
¶22 First, Lopez claims that the State did not meet its burden of proving count two, felony
assault, against John Hendricks, in violation of §45-5-202(1), MCA (1997), which
provides that "a person commits the offense of felony assault if the person purposely or
knowingly causes . . .bodily injury to another with a weapon."
¶23 Hendricks testified that a man broke down the front door to his apartment and stabbed
him in the chest. Although Hendricks identified Lopez as his assailant in previous
statements to the police, Hendricks testified during trial that Lopez was not his assailant.
However, the State impeached this testimony by offering his prior inconsistent statements.
It also demonstrated why Hendricks might refuse to identify Lopez as his assailant during
trial. Prior to the trial, Hendricks cooperated with the police and identified Lopez as his
assailant. However, before Lopez's trial occurred, Hendricks was, himself, imprisoned on
unrelated charges. The prosecution suggested that Hendricks' motive for retracting his
earlier statements was the fear of any possible consequences that might occur in prison if
he was labeled a "snitch."
¶24 The State also offered evidence that Lopez believed that Rita was in one of the
apartments that he broke into that night and suggested that Lopez broke into both
Jorgenson and Hendricks' apartments because he believed Rita was having an affair. When
the police investigated the burglaries, both Hendricks and Jorgenson told the police that
their assailant stated that he was looking for Rita. Both gave similar descriptions of their
assailant. Hendricks told the police that he believed his assailant was blonde but changed
his mind about the hair color the following day. At trial, the defense tried to discredit his
testimony and identification of Lopez because Lopez has brown hair. However, Hendricks'
inconsistent identifications were simply additional facts for the jury to consider.
¶25 The State also offered several admissions from Lopez. When the police initially
questioned Lopez, he denied entering Hendricks' apartment. He later retracted this
statement and told the police that he did break down Hendricks' front door but denied
stabbing him. He changed his story once again and told the police that he punched
Hendricks but only after Hendricks came after him with a large pipe. These statements
contradict Hendricks' testimony that his assailant came into his house, stabbed him and
left. Hendricks has never made any statement, either before or during trial that suggested
that he, himself, did anything to provoke the attack.
¶26 The jury was shown pictures of Hendricks' stab wound and also heard testimony that
Hendricks' picked Lopez out of a police photo line-up. The weight of the evidence and the
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-496%20Opinion.htm (6 of 8)3/28/2007 11:39:43 AM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-496%20Opinion.htm
credibility of the witnesses are exclusively within the province of the trier of fact. When
the evidence conflicts, the trier of fact determines which to believe. State v. Bower (1992),
254 Mont. 1, 8, 883 P.2d 1106, 1111. We conclude that the State offered sufficient
evidence to prove felony assault of Hendricks. Therefore, we conclude that that the
District Court did not err when it refused to dismiss that charge by directed verdict.
¶27 Lopez also contends that there was insufficient evidence to support the charges for
aggravated burglary based on his entry of John Hendricks' apartment. Pursuant to §45-6-
204, a person commits aggravated burglary:
if he knowingly enters or remains unlawfully in an occupied structure with the
purpose to commit an offense therein and . . . in effecting entry or in the course of
committing the offense or in immediate flight thereafter, he or another participant in
the offense is armed with explosives or a weapon. . . .
Section 45-6-204(2)(a). The prosecution offered testimony that Lopez broke down the
front door of Hendricks apartment while in possession of a weapon and demanded to
know where Rita was. He stabbed Hendricks and fled. Hendricks testified that he had not
left his apartment the night he was stabbed. Therefore, his assailant must have entered the
apartment. As we held previously, the State provided substantial evidence that Lopez
feloniously assaulted Hendricks. Whether Lopez entered the apartment for that purpose
was an issue properly submitted to the jury. Therefore, we conclude that the District Court
did not abuse its discretion when it refused to dismiss the charge that Lopez committed
aggravated burglary of Hendricks' apartment.
¶28 Accordingly, we remand this case for a new trial on all the charges, with the exception
of Count 1, aggravated assault, Count 6, aggravated burglary and Count 11, burglary.
/S/ TERRY N. TRIEWEILER
We Concur:
/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-496%20Opinion.htm (7 of 8)3/28/2007 11:39:43 AM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-496%20Opinion.htm
/S/ JIM REGNIER
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-496%20Opinion.htm (8 of 8)3/28/2007 11:39:43 AM