State v. Matz

No. 05-345

IN THE SUPREME COURT OF THE STATE OF MONTANA

2006 MT 348

STATE OF MONTANA,

Plaintiff and Respondent,

v.

STEVEN LEO MATZ,

Defendant and Appellant.

APPEAL FROM: The District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause DC-04-541,
Honorable Russell C. Fagg, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Brad L. Arndorfer, Arndorfer Law Firm, P. C., Billings, Montana

For Respondent:

Honorable Mike McGrath, Attorney General; Joslyn M. Hunt,
Assistant Attorney General, Helena, Montana

Dennis Paxinos, County Attorney; Ed E. Zink, Deputy County
Attorney, Missoula, Montana

Submitted on Briefs: May 24, 2006

Decided: December 27, 2006

Filed:

__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1 Steven Leo Matz (Matz) appeals from the verdict and judgment entered by the

Thirteenth Judicial District Court, Yellowstone County, finding him guilty of felony

aggravated assault and enhancing his sentence for that offense with an additional five

years pursuant to § 46-18-221, MCA, based upon the finding that he used a weapon in the

commission of the offense. We affirm.

¶2 We consider the following issues on appeal:

¶3 (1) Did the District Court err in denying Matz’s proposed jury instruction which

would have required the State to prove that Matz did not act with justifiable use of force?

¶4 (2) Did Matz’s sentence enhancement for using a weapon violate double jeopardy

where his underlying conviction was for aggravated assault?

¶5 (3) Did the District Court err by giving a jury instruction that did not distinguish

which form of serious bodily injury was being alleged?

¶6 (4) Did the District Court abuse its discretion by excluding evidence that the

alleged victim had marijuana and a marijuana pipe in his pocket at the time of the

altercation?

FACTUAL AND PROCEDURAL BACKGROUND

¶7 Steve Andersen (Andersen) and his wife, Amber Andersen (Amber), managed the

Village Inn Pizza Parlor (Village Inn) in Billings, Montana. On the night of May 30,

2004, at approximately ten o’ clock in the evening, while taking a break from cleaning,

Andersen noticed an individual on a bicycle cut through the parking lot, which was

situated behind the restaurant. Knowing that there was only one way out of the parking

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lot, Andersen, joined by Amber, waited for the individual to ride back out. The

individual, who turned out to be Matz, was riding his bicycle for exercise and in search of

neighborhood dumpsters. Matz frequented dumpsters behind neighborhood pizza

restaurants to recover discarded pizza, which he fed to his neighbor’s dogs.

¶8 Andersen and Amber, after waiting a minute or two, walked out to the parking lot

and found Matz astride his bicycle while holding up the lid of the dumpster and perusing

its contents. Andersen told Matz that he was on private property, to get out of the

dumpster, and threatened to call the police. Matz indicated that he had a right to be there

because the dumpster was public domain. Andersen issued another warning for Matz to

leave the property and requested Amber to call the police, but the testimony about what

occurred thereafter was conflicted.

¶9 A business videotape disclosed the parties’ initial meeting but did not capture the

following altercation between Andersen and Matz. Matz testified that Andersen was

belligerent and, as Matz rode his bicycle past Andersen to depart the premises, Andersen

attacked him and knocked him off his bicycle and onto his back. Being susceptible to a

shoulder injury and afraid he would be kicked in his shoulder, Matz testified that he

pulled a gun he was carrying to protect himself, explaining that he is a licensed firearm

dealer and that he carried the gun to defend himself while riding his bicycle in the

evening. In contrast, Andersen testified that, after telling Amber to call the police, Matz

began taunting Andersen while Andersen implored Matz to leave. Matz responded by

riding his bicycle over to within some two and a half feet of Andersen, pulling the gun

from his pocket, and asking, “What do you think of this, tough guy?”

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¶10 Seeing a gun pointed at his head, Andersen grabbed it with both of his hands in an

effort to take it away. Struggling, both men fell to the ground. Matz pushed the gun

barrel into Andersen’s side, while Andersen tried to point it away from his body. During

the struggle Matz fired the gun twice, with one shot penetrating Andersen’s stomach and

the other grazing his arm, but this did not end the battle. Hearing the gunshots, Amber ran

outside and, seeing Matz on top of her husband, jumped onto Matz’s back and began

choking him in an effort to remove him from Andersen. When Andersen yelled for

Amber to grab the gun, Amber reached around the back of Matz and grabbed the four

hands that were already clutching the gun, and all three of the parties struggled to control

the gun. When, during the mêlée, Amber noticed that the gun had become pointed

toward Matz beneath her, and thinking that her husband may have been mortally

wounded, she unsuccessfully attempted to discharge the firearm into Matz. Quickly

responding police officers found the parties thus engaged and broke up the struggle.

¶11 The State filed its information charging Matz with aggravated assault. A jury trial

was held which ended with Matz moving for and being granted a mistrial. A second trial

in January 2005 resulted in a conviction. Prior to sentencing, Matz filed a “motion to

strike and dismiss claim for weapon enhancement penalty,” seeking to deny the State’s

request for a sentence enhancement, which the State had first asserted in the information.

The District Court denied this motion, and Matz was sentenced to fifteen years in the

Montana State Prison and an additional five years pursuant to § 46-18-221, MCA,

because he was found to have used a weapon while engaged in the commission of the

underlying offense of aggravated assault. Matz appeals.

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 DISCUSSION

¶12 (1) Did the District Court err in denying Matz’s proposed jury instruction which

would have required the State to prove that Matz did not act with justifiable use of force?

¶13 “We review claims of instructional error in a criminal case to determine whether

the jury instructions, as a whole, fully and fairly instruct the jury on the law applicable to

the case.” State v. DuBray, 2003 MT 255, ¶ 88, 317 Mont. 377, ¶ 88, 77 P.3d 247, ¶ 88

(citing State v. Long, 274 Mont. 228, 232, 907 P.2d 945, 947 (1995)). “Since a trial court

has broad discretion when instructing a jury, reversible error will occur only if the jury

instructions prejudicially affect the defendant’s substantial rights.” State v. Maloney,

2003 MT 288, ¶ 14, 318 Mont. 66, ¶ 14, 78 P.3d 1214, ¶ 14 (quoting State v. Strauss,

2003 MT 195, ¶ 47, 317 Mont. 1, ¶ 47, 74 P.3d 1052, ¶ 47).

¶14 Matz’s proposed jury instruction stated: “You are instructed [that] the Defendant,

Steven Leo Matz, is not required to prove self-defense or justification. The State is

required to prove beyond a reasonable doubt that justification or self-defense does not

exist in this case.” Matz first argues that the District Court erred when it refused this

proposed instruction because requiring a defendant to bear the burden of proof is

unconstitutional. He argues it is only logical that when there are issues of self-defense, as

here, the State must be required to prove beyond a reasonable doubt that justification or

self-defense does not exist. Matz asserts this Court has not expressly overturned State v.

Azure, 181 Mont. 47, 591 P.2d 1125 (1979), wherein the Court held that a defendant’s

proffered instruction that “the State must prove the absence of justification [for using

force in self-defense] beyond a reasonable doubt” was a correct statement of the law.

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Azure, 181 Mont. at 54, 591 P.2d at 1130. Therefore, he argues, it is still proper to

instruct a jury that the prosecution bears the burden of proving lack of justification for

self-defense beyond a reasonable doubt when this issue is raised.

¶15 The State argues that while Matz may be correct that this Court has not expressly

overruled its decision in Azure, its applicability has certainly been called into question

and cannot stand beside more recent cases, such as State v. Daniels, 210 Mont. 1, 682

P.2d 173 (1984), wherein this Court noted the many cases challenging self-defense or

justifiable use of force instructions it had decided. The Daniels Court then stated:

From these cases the true rule can be drawn: The State has the burden of
proving beyond a reasonable doubt every element of the offense charged, or
any lesser-included crime within such charge; the defendant if he raises an
affirmative defense has the burden of producing sufficient evidence on the
issue to raise a reasonable doubt of his guilt . . . .

Daniels, 210 Mont. at 16, 682 P.2d at 181. The State notes that Matz raised justifiable

use of force as an affirmative defense to the charge and that, therefore, he bore the burden

of producing sufficient evidence to establish the defense.

¶16 We agree with the State that Azure’s statement, quoted above, approving a jury

instruction which placed the burden upon the State to establish the absence of

justification for use of force, is no longer good law. Indeed, we have previously

explained that this was the effect of our holding in Daniels. In State ex rel. Kuntz v.

Thirteenth Jud. Dist., 2000 MT 22, ¶ 42, 298 Mont. 146, ¶ 42, 995 P.2d 951, ¶ 42, we

noted that “[a]lthough not expressly holding so, Daniels overturned a line of case law,

notably State v. Graves (1981), 191 Mont. 81, 622 P.2d 203, and State v. Azure (1979),

181 Mont. 47, 591 P.2d 1125, that had previously held that jury instructions stating that

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the State had the burden to prove an absence of justification beyond a reasonable doubt

were proper.” We also cited State v. Gratzer, 209 Mont. 308, 318, 682 P.2d 141 (1984),

for this proposition.

¶17 Matz raised justifiable use of force as his affirmative defense to the shooting.

Therefore, it was properly and constitutionally Matz’s burden at trial to produce

sufficient evidence to raise a reasonable doubt of his guilt based on his justifiable use of

force defense, and the State was not obligated to prove that Matz did not act with such

justification. Daniels, 210 Mont. at 16, 682 P.2d at 181. The District Court properly

instructed the jury to that effect and appropriately denied Matz’s proffered instruction.

¶18 (2) Did Matz’s sentence enhancement for using a weapon violate double jeopardy

where his underlying conviction was for aggravated assault?

¶19 This Court reviews a district court’s imposition of sentence for legality. When the

issue concerns “whether the district court violated the defendant’s constitutional rights at

sentencing, the question is a matter of law which we review de novo to determine

whether the district court’s interpretation of the law is correct.” State v. Mason, 2003 MT

371, ¶ 19, 319 Mont. 117, ¶ 19, 82 P.3d 903, ¶ 19 (citing State v. Bedwell, 1999 MT 206,

¶ 4, 295 Mont. 476, ¶ 4, 985 P.2d 150, ¶ 4; State v. Guillaume, 1999 MT 29, ¶ 7, 293

Mont. 224, ¶ 7, 975 P.2d 312, ¶ 7).

¶20 Matz argues that his sentence of fifteen years for aggravated assault and the

sentence enhancement of five years for use of a weapon during the commission of the

aggravated assault is in violation of the prohibition against double jeopardy found at

Article II, Section 25, of the Montana Constitution as interpreted in State v. Guillaume,

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1999 MT 29, 293 Mont. 224, 975 P.2d 312. Matz challenges the District Court’s reliance

on the statement made in State v. Whitehorn, 2002 MT 54, ¶ 45, 309 Mont. 63, ¶ 45, 50

P.3d 121, ¶ 45, that the only two offenses where the use of a weapon enhancement may

not be used are assault with a weapon and aggravated burglary. Matz argues it is illogical

to claim that there is a distinction between the charge of assault with a weapon and the

charge at issue here, aggravated assault, when the aggravated assault has occurred with

the use of a weapon, because, as a practical matter, very few cases of aggravated assault

are without the use of a weapon.

¶21 The State argues that the use of a weapon is not an element of aggravated assault

as charged against Matz, thus allowing Matz’s sentence to be enhanced for using a

weapon. The State contends that application of the weapon enhancement statute to a

conviction in which the underlying offense does not require proof of use of a weapon

does not constitute a double jeopardy violation, citing State v. Keith, 2000 MT 23, ¶ 39,

298 Mont. 165, ¶ 39, 995 P.2d 966, ¶ 39, wherein we approved a weapon enhancement

upon a sentence for criminal endangerment. The State maintains that an offense which

does not include use of a weapon as an element, but which nonetheless occurred by use

of a weapon, is fundamentally different than an offense that actually includes the use of a

weapon as an element, such as assault with a weapon and aggravated burglary. The State

notes that Matz concedes that not all aggravated assaults occur with use of a weapon, and

therefore this Court’s statement in Whitehorn, that the offenses of assault with a weapon

and aggravated burglary were the only two offenses which could not be enhanced for use

of a weapon, is correct.

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¶22 Montana’s weapon enhancement statute, § 46-18-221(1), MCA, provides that:

a person who has been found guilty of any offense, other than an offense in which
the use of a weapon is an element of the offense, and who, while engaged in the
commission of the offense, knowingly displayed, brandished, or otherwise used a
firearm, destructive device, as defined in 45-8-332(1), or other dangerous weapon
shall, in addition to the punishment provided for the commission of the
underlying offense, be sentenced to a term of imprisonment in the state prison of
not less than 2 years or more than 10 years, except as provided in 46-18-222.

¶23 This Court ruled in Guillaume, ¶ 16, that application of the weapon enhancement

to an offense that itself requires proof of the use of a weapon violates Montana’s

constitutional protection against double jeopardy. A double jeopardy analysis under

Guillaume is based upon the statutory definition of the underlying offense, i.e., whether

one of the elements of the offense requires proof of the use of a weapon. See Keith, ¶ 39.

¶24 Matz was charged of aggravated assault under § 45-5-202(1), MCA, which

requires that an individual “purposely or knowingly causes serious bodily injury to

another.” Pursuant thereto, the jury was directed in Instruction No. 13 that: “[t]o convict

the Defendant of aggravated assault, the State must prove the following elements: (1)

[t]hat the Defendant caused serious bodily injury to Steve Andersen; and (2) [t]hat the

Defendant acted purposely and knowingly.” Then, the jury was further instructed, in

Instruction No. 29, regarding the need to enter a separate finding regarding Matz’s use of

a weapon:

[t]he State has alleged that in committing the offense of Aggravated
Assault, the Defendant used a firearm or dangerous weapon. Whether the
Defendant used a firearm or dangerous weapon in the commission of the
offense for which the Defendant is being tried must be proved by the State
by proof beyond a reasonable doubt. This is a separate finding by you,
independent of the issue of whether the Defendant is guilty of the offense of
Aggravated Assault. You need not find the Defendant used a firearm or

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 dangerous weapon unless you first determine beyond a reasonable doubt
that the Defendant committed the offense of Aggravated Assault. [Emphasis
added.]

¶25 Matz’s use of a weapon was not an element of the offense of aggravated assault.

The jury was instructed to make an additional, “separate finding,” which was used by the

District Court to impose the sentence enhancement. Thus, it cannot be said that Matz

received multiple punishments for the same act or crime.

¶26 According to the analysis required under our case law, it is clear that the District

Court did not err in enhancing Matz’s sentence for use of a weapon where he was found

guilty of aggravated assault under § 45-5-202, MCA, and was separately found by the

jury to have used a weapon in the commission of that offense. Accordingly, the

application of the weapon enhancement statute to Matz’s sentence for aggravated assault

did not subject Matz to a punishment in violation of the double jeopardy provision of

Article II, Section 25, of the Montana Constitution.

¶27 (3) Did the District Court err by giving a jury instruction that did not distinguish

which form of serious bodily injury was being alleged?

¶28 We review a jury instruction in a criminal case to see whether the instruction fully

and fairly instructed the jury on the law applicable to the case. DuBray, ¶ 88 (citing

Long, 274 Mont. at 232, 907 P.2d at 947). “Since a trial court has broad discretion when

instructing a jury, reversible error will occur only if the jury instructions prejudicially

affect the defendant’s substantial rights.” Maloney, ¶ 14 (quoting Strauss, ¶ 47).

¶29 Matz offers a very brief argument that his constitutional right to an unanimous

verdict was violated by the instructions given to the jury, citing State v. Weldy, 273 Mont.

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68, 902 P.2d 1 (1995). In Weldy, the defendant was charged with felony assault under

two alternative statutory subsections. The alternatives were not alternative means of

satisfying one common element, but, rather, set forth separate offenses. Weldy, 273

Mont. at 78, 902 P.2d at 7. Because the verdict form in Weldy did not ask the jury to

specify which type of felony assault served as the basis for its finding, this Court

concluded that the defendant’s constitutional right to a unanimous verdict was not

protected by the jury instructions or the jury verdict form. Weldy, 273 Mont. at 78, 902

P.2d at 7. Matz argues that because the jury instruction offered in this case defining

serious bodily injury did not distinguish which form of serious bodily injury was being

alleged, it similarly violated his right to a unanimous verdict.

¶30 The State responds that, while there are alternative ways of defining serious bodily

injury under § 45-2-101(66), MCA—namely, risk of death, serious permanent

disfigurement, or an expected result of serious permanent disfigurement—these alternate

definitions do not represent separate elements or offenses. Thus, the State contends that a

specific unanimity instruction was not necessary because the jurors had already been

instructed to find a unanimous verdict as to the charge of aggravated assault, which

included the alternative means of satisfying the single element of serious bodily injury.

We agree.

¶31 “[L]egislatures frequently enumerate alternative means of committing a crime

without intending to define separate elements of separate crimes . . . .” Weldy, 273 Mont.

at 77, 902 P.2d at 6 (quoting Schad v. Arizona, 501 U.S. 624, 636, 111 S. Ct. 2491,

2499). In Kills on Top v. State, 273 Mont. 32, 901 P.2d 1368 (1995), we cited Schad for

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this proposition and held that the alternatives set forth in the aggravated kidnapping

statute represented different means of committing the same offense, rather than separate

offenses. Kills on Top, 273 Mont. at 56, 901 P.2d at 1384.

¶32 This case requires the same outcome because the alternative definitions set forth in

§ 45-2-101(66), MCA, merely describe different ways or means of seriously injuring

another while committing the offense, and do not define different offenses or different

elements of one offense. Matz was charged with only one criminal offense, with one set

of elements thereof. Therefore, the District Court did not abuse its discretion in

instructing the jury with regard to unanimity, and Matz’s constitutional rights were not

implicated thereby.

¶33 (4) Did the District Court abuse its discretion by excluding evidence that the

alleged victim had marijuana and a marijuana pipe in his pocket at the time of the

altercation?

¶34 “A district court has broad discretion in determining the relevance and

admissibility of evidence.” State v. Hicks, 2006 MT 71, ¶ 19, 331 Mont. 471, ¶ 19, 133

P.3d 206, ¶ 19 (citing State v. Flowers, 2004 MT 37, ¶ 19, 320 Mont. 49, ¶ 19, 86 P.3d 3,

¶ 19). Therefore, this Court will not overturn a district court’s evidentiary ruling absent a

showing of abuse of discretion. Hicks, ¶ 19. “A district court abuses its discretion when

it acts arbitrarily without employment of conscientious judgment or exceeds the bounds

of reason, resulting in substantial injustice.” State v. Riggs, 2005 MT 124, ¶ 18, 327

Mont. 196, ¶ 18, 113 P.3d 281, ¶ 18 (citing State v. Weldele, 2003 MT 117, ¶ 72, 315

Mont. 452, ¶ 72, 69 P.3d 1162, ¶ 72).

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¶35 When Andersen was taken to the hospital after the altercation, a blood test was

conducted that indicated he had a blood alcohol content of .028. The defense was

allowed to cross-examine Andersen about his drinking that evening, but when the defense

sought to introduce the marijuana and marijuana pipe found on Andersen that night, the

State objected on relevance grounds. The District Court, citing this Court’s holdings in

State v. Gleim, 17 Mont. 17, 41 P. 998 (1895), and State v. Sorenson, 190 Mont. 155, 619

P.2d 1185 (1980), excluded the evidence, because Matz had not demonstrated that

Andersen was under the influence of marijuana at the time of the incident.

¶36 Matz initially argues that this evidence was highly relevant to his self-defense

theory, because the marijuana may have suggested why Andersen acted in the manner

Matz had alleged—that is, attacking Matz and knocking him off his bicycle. The State

responds that such a connection between the marijuana and Andersen’s behavior, without

more, is entirely speculative, but, additionally, that Matz did not offer the evidence for

this purpose at trial. Matz’s relevance argument having not been made at trial, we need

not consider it further.

¶37 At trial, Matz argued that the

only thing this evidence does is prove that at the time these incidents
happened, these were in his pocket. I have no proof beyond that, intend to
offer it as that. But that, those are facts that are there. I think we are
entitled to present the scene of the crime, what happened, who had what.

Thus, Matz essentially intended to impeach Andersen’s credibility by reason of

Andersen’s possession of the marijuana. Matz argues that this was also a proper purpose

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pursuant to M. R. Evid. 404(a)(2), which permits introduction of character evidence

concerning a victim.

¶38 M. R. Evid. 404(a)(2) provides that evidence “of a pertinent trait of character of

the victim of the crime” may by offered by an accused. However, Matz did not offer

evidence of any “pertinent trait” about Andersen, only the marijuana he possessed.

About such evidence, this Court held in Gleim, and reaffirmed in Sorenson, “that the

mere use of narcotics is not admissible to impeach witness credibility ‘unless it is

proposed to show that the witness was under the influence of the drugs at the time the

events happened about which she testified.’” Sorenson, 190 Mont. at 166, 619 P.2d at

1191 (citing Gleim, 17 Mont. at 31, 41 P. at 1001). Here, Matz laid no foundation

tending to show that Andersen was under the influence of drugs at the time of the events

in question. Given Matz’s failure to lay that foundation, exclusion of the evidence for the

reason offered was not an abuse of discretion.

¶39 Affirmed.

/S/ JIM RICE

We concur:

/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ W. WILLIAM LEAPHART
/S/ JOHN WARNER

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