No. 87-520
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
RONALD WILLIAM McKIMMIE,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable John McCarvel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
John Keith, Great Falls, Montana
For Respondent :
Hon. Mike Greely, Attorney General, Helena, Montana
John Paulson, Asst. Atty. General, Helena
Patrick L. Paul, County Attorney, Great Falls, Montana
Steve Hagerman, Deputy County Attorney, Great Falls
Submitted on Briefs: April 28, 1988
Clerk
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
Defendant McKimmie appeals his September 23, 1987,
bench convictions in the Eighth Judicial District Court,
Cascade County, for deliberate homicide, burglary, theft and
evidence tampering. McKimmie was sentenced to one hundred
years in the Montana State Prison for deliberate homicide,
ten years for burglary, ten years for tampering with physical
evidence, and ten years for use of a dangerous weapon, with
the sentences to run consecutively. McKimmie was also sen-
tenced to six months in the Cascade County jail for misde-
meanor theft, to run concurrently. McKimmie was designated a
nondangerous offender. We affirm the convictions.
McKimmie raises two issues for our review:
1. Does sufficient evidence support McKimmiels convic-
tion of deliberate homicide?
2. Does sufficient evidence support McKimmiels convic-
tion of burglary, theft and tampering with physical evidence?
At 2: 07 a.m. on June 6, 1987, the police dispatcher in
Great Falls received a call from a woman asking for help.
Upon questioning, she stated that her husband had shot her
with a rifle. She also stated that her husband had taken the
rifle and fled in a 1976 Ford Pinto.
The dispatcher stayed on the line for several minutes
until a police officer arrived at the victim's apartment.
The officer found the victim, Valarie McKimmie, lying on the
couch with a telephone in her hand. She had a two-inch hole
in her chest. The officer hung up the phone and immediately
tried to stop the bleeding by applying direct pressure to the
wound. A second officer soon arrived and assisted until the
ambulance arrived. The second officer asked Valarie who had
shot her. She replied: "My husband." The officer then asked
for her husband's name, and she replied: "Ronald."
Valarie was transported to Deaconess Medical Center in
Great Falls. The police were unable to get any further state-
ments from her. Valarie died as a result of the gunshot
wound on June 11, 1987.
McKimmie was subsequently charged with deliberate
homicide, burglary, theft and evidence tampering. Trial was
held on September 22, 1987. Prior to presenting his
case-in-chief, McKimmie stipulated to the following facts:
McKimmie shot Valarie with a rifle belonging to Eugene
Ameline. Following the shooting, McKimmie left the rifle
alongside Interstate 15 south of Great Falls. McKimmie then
drove to Salt Lake City, where he was arrested for DUI by a
Utah Highway Patrol officer in the afternoon of June 6, 1987.
McKimmie told the arresting officer that he had shot his wife
in Montana.
Issue 1. Deliberate Homicide
The District Court convicted McKimmie of deliberate
homicide as defined in S 45-5-102 (1)(a), MCA (1985): "Crimi-
nal homicide constitutes deliberate homicide if: (a) it is
committed purposely or knowingly." At sentencing, the Dis-
trict Court told McKimmie: "[Ylou laid in wait for her until
she came home, and you deliberately shot her. She was still
holding her purse, and one of the shells penetrated the metal
clasp on the purse and went into her chest, which indicates
to me that this is deliberate homicide of the worst type."
However, McKimmie contends that the shooting was acci-
dental and that the State did not prove he acted purposely or
knowingly in causing Valarie's death.
Our standard of review on sufficiency of evidence is
whether the evidence, when viewed in a light most favorable
to the prosecution, would allow any rational trier of fact to
find the essential elements of the crime beyond a reasonable
doubt. State v. Kutnyak (Mont. 1984), 685 P.2d 901, 910, 41
St.Rep. 1277, 1289. If events are capable of different
interpretations, the trier of fact shall determine which is
the most reasonable. State v. Matson (Mont. 1987) , 736 ~ . 2 d
971, 973, 44 St.Rep. 874, 875, citing State v. Atlas (Mont.
In the instant case, the State was required to show
that McKimmie purposely or knowingly caused the death of
Valarie. "Knowingly" is defined in 5 45-2-101 (33), MCA:
A person acts knowingly with respect to
conduct or to a circumstance described
by a statute defining an offense when he
- aware - - conduct or that the
is of his
circumstance exists. A person acts
knowingly with respect to the result of
conduct described by a statute defining
an offense when he is aware that it is
highly probable -- result - -be
that such will
caused by - conduct.
his [Emphasis
added. 1
This "knowing" element was manifest in McKimmie's
actions. McKimmie admitted that he had broken into Eugene
Arneline's apartment earlier in the evening. McKimmie removed
the weapon used to kill Valarie, which was a 7.65 Mauser
rifle, and two sizes of ammunition from the apartment. He
left everything else in place.
McKimmie testified that he then tried to commit suicide
with the rifle around 10:30 p.m. on June 5. As he was posi-
tioning himself on the couch, he claimed that the rifle
slipped off the coffee table and discharged into the refrig-
erator. But the District Court stated: "You said that you
attempted to commit suicide, but it's the Court's belief that
you fired that shot that hit the refrigerator, about a foot
from the floor, just to see if it worked, see if you had the
right ammunition in the gun."
McKimmie testified that he reloaded the rifle around
12: 30 a.m. According to McKimmie, when Valarie came home at
about 1:30 a.m., McKimmie talked to her about his attempted
suicide. While he was holding the rifle across his lap,
Valarie sat on an adjacent couch. McKimmie stated that he
fell back, and the gun discharged. McKimmie testified: "I
looked at her and thought, my God, she ' s dead. " A firearms
expert testified that the rifle was operating normally and
that Valarie was shot from a distance of less than four feet.
We find that McKimmie's actions prior to, during and
after the shooting demonstrate an awareness of his conduct
and its probable results. However, McKimmie next asserts
that he is an alcoholic and was not aware of what he was
doing because he he drank alcohol from noon on June 5, 1987,
until his arrest on June 6, 1987, for DUI. We note
§ 45-2-203, MCA (19851, which states:
A person who is in an intoxicated or
drugged condition is criminally respon-
sible for his conduct unless such condi-
tion is involuntarily produced and
deprives him of his capacity to appreci-
ate the criminality of his conduct ...
[Emphasis added.]
By his own admission-on the witness stand, McKimrnie had
voluntarily consumed alcohol since noon. Where sufficient
credible evidence supports the findings, the question of the
relationship of voluntary intoxication to specific intent
will not be reconsidered on appeal. State v. Hardy (19801,
185 Mont. 130, 135, 604 P.2d 792, 795-796. In light of the
supporting evidence, we will not make an independent determi-
nation of the effect of voluntary intoxication on the defen-
dant's state of mind. State v. Sage (Mont. 1986), 717 P.2d
Finally, McKimmie admits that his flight after the
shooting might infer knowledge or purpose, but he asserts
that mere flight does not establish the requisite mental
state. We note that, standing alone, such flight does not
establish the requisite mental state. However, flight by a
defendant may be considered by the trier of fact as a circum-
stance tending to prove consciousness of guilt. State v.
Charlo (Mont. 1987), 735 P.2d 278, 282, 44 St.Rep. 597, 603.
As trier of fact, the District Court determined the eviden-
tiary weight and significance of McKimmie's flight from the
crime scene. State v. Twoteeth (Mont. 1985), 711 P.2d 789,
794, 42 St.Rep. 1873, 1879.
McKimmie fled the crime scene, he disposed of the
Mauser rifle, and he subsequently admitted shooting Valarie.
The record contains ample evidence that McKimrnie knowingly
caused the death of Valarie. If the act which causes the
death is done purposely or knowingly, deliberate homicide is
committed even if death is not the intended result. State v.
Sigler (Mont. 1984), 688 P.2d 749, 758, 41 St.Rep. 1039,
1047. McKimmie's claim is without merit. We hold that the
evidence clearly supports McKimmie's conviction for deliber-
ate homicide.
Issue 2. Burglary, theft and tampering
a. Burglary
McKimmie was convicted of burglary as defined in
§ 45-6-204 (I), MCA:
A person commits the offense of burglary
if he knowingly enters or remains unlaw-
fullv in an occu~ied structure with the
urpose to commit - offense therein.
an
qEmphasisadded . I
McKimmie contends that he entered Ameline's apartment
in his capacity as apartment manager. Arneline lived two
apartments away from McKimmie. McKimmie asserts that he was
in the process of evicting Ameline for nonpayment of rent.
McKimmie argues that he merely inventoried Ameline's property
for storage and removed Ameline's rifle as a "protective
measure." He concludes that no evidence shows a purpose to
commit an offense.
We disagree. McKimmie's "apartment manager" defense to
burglary is inadequate. McKirnmie acted far beyond his statu-
tory authority as agent of the landlord. First, his method
of entry was destructive. The police investigating officer
noted that the main window on Ameline's apartment door had
been broken out and the wire mesh behind the window had been
damaged. Second, McKimmie entered Ameline's apartment at
night. Third, McKimmie entered without the tenant's consent.
Fourth, he entered without notice. McKimmie plainly violated
a landlord's right of access under S 70-24-312(3), MCA:
". . . the landlord shall give the tenant at least 24 hours'
notice of his intent to enter and may enter only at reason-
able times. " (Emphasis added. )
McKimrnie ' s unlawful entry was also done knowingly.
McKimmie testified in detail about where he had been and what
he had done in the hours prior to the time he entered
Ameline's apartment. McKimmie precisely described his entry:
"I had keys for all of the units except his. So I had to use
a small hammer on the window and I was careful to try to keep
the damage as minimal as possible." McKimmie then recalled
in detail the events which occurred after his entry into the
apartment. McKimmie's testimony falls squarely within the
definition of "knowingly" in S 45-2-101(33), MCA.
The third element of burglary--"purpose to commit an
offensen--is discussed below, and shows that theft was the
object and purpose of McKimmie's entry into the apartment.
We hold that McKimrnie's conviction of burglary is amply
supported by the theft, the physical evidence of forced entry
and McKimmiels admissions.
b. Theft
Theft is defined in S 45-6-301 (I), MCA:
A person commits the offense of theft
when he purposely or knowingly obtains
or exerts unauthorized control over
property of the owner and: (1) has the
purpose of deprivinq the owner of the
property. [Emphasis added.]
The State proved each element of theft. First,
McKimmie admitted that he removed the rifle and ammunition
from Ameline's apartment. He did so without Ameline's knowl-
edge or consent. McKimmie then fired and expended two
shells. McKimmiels actions thus constitute a knowing exer-
tion of unauthorized control.
Second, McKimmie's conduct deprived Ameline of his
rifle. "Deprive" means to withhold property of another and
"dispose of the property and use or deal with the property so
as to make it unlikely that the owner will recover it."
Section 45-2-101 (19) (d), MCA. After he shot his wife,
McKimmie took Ameline's rifle and fled from the scene.
McKimmie testified that he stopped his car on Interstate 15
near Gore Hill. He stated: "I grabbed the rifle and tossed
it over the roof of the car." Such abandonment plainly
deprived Arneline the use of his property. Only by chance,
the rifle was recovered ten days later. We hold that the
physical evidence and McKimmie's own admissions fully support
his conviction for theft.
c. Tampering
The Mauser rifle and the victim's purse were found by
highway workers on June 16, 1987. The purse had
identification in it showing that it belonged to Valarie.
Ameline identified the rifle as his. The rifle had already
begun to rust.
Tampering is defined in S 45-7-207(1), MCA:
A person commits the offense of tamper-
ing with or fabricating physical evi-
dence if, believing that an official
proceeding or investigation is pendin
or about to be institutedrhe: (a?
alters, destroys, conceals or removes
any record, document, or thing with
purpose to impair its verity or avail-
ability in such proceeding or investi-
gation. [Emphasis added.]
On the witness stand, McKimmie admitted that he dis-
carded the rifle and purse in the ditch. However, McKimmie
contends that he was too distraught to have formed the requi-
site mental state or belief that an official investigation
was pending.
The District Court reviewed the evidence, observed
McKimrnie's testimony and assessed his veracity. A trier of
fact may infer the requisite mental state from a defendant's
conduct and statements. State v. Pierce (1982), 199 Mont.
57, 63, 647 P.2d 847, 851. McKimmie removed and concealed
the evidence. He not only impaired its availability, but
also caused its condition to change. Viewed in a light most
favorable to the State, the evidence was reasonably inter-
preted and adequately supports McKimmie's conviction of
tampering with evidence.
We affirm the four convictions.
We concur:
& 4 S7
9 ? k /
Justices