No. 90-017
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
OWEN TODD EVANS,
Defendant and Appellant-
" " R K @ ~ ~ u P R E E ~ ~ w Y ~
&TAT% O(P.
4
APPEAL FROM: ~istrict Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Thomas A. Olson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Edward G. Beaudette; Knight, Dahood, McLean and
Everett, Anaconda, Montana
For Respondent:
Hon. Marc Racicot, Attorney General, Helena, Montana
Elizabeth L. Griffing, Assistant Attorney General,
Helena, Montana
A. Michael Salvagni, County Attorney, Bozeman,
Montana
Marty Lambert, Deputy County Attorney, Bozeman,
Montana
Submitted on Briefs: October 1 9 , 1 9 9 0
Decided: February 14, 1991
Filed: ..I*
Justice Diane G. Barz delivered the Opinion of the Court.
Owen Todd Evans appeals from his September 28, 1989,
conviction of aggravated burglary, two counts of felony assault,
and one count of felony theft by a jury sitting in the District
Court of the Eighteenth Judicial District, Gallatin County. We
affirm.
Evans presents the following issues:
1. Did the jury improperly find a llstun-gunn be a weapon
to
for purposes of aggravated burglary and felony assault?
2. Did the District Court err in failing to instruct the jury
on the definition of a weapon under Montana law and on the lesser
included offense of assault?
3. Was Evans subjected to double jeopardy by being convicted
for both aggravated burglary and felony assault?
4. Did the District Court err in failing to exclude from
evidence the contents of Evans1 gym bag when it was shown to
contain items not listed on the original inventory when the bag was
seized?
5. Did the District Court err in allowing the testimony of
William Kayser as an expert in the field of handwriting analysis
and questioned document examination?
6. Was the sentence imposed by the District Court improper
due to its scope and severity?
7. Did the District Court properly exclude Evans1 parents,
who were potential witnesses, from the courtroom?
On the night of March 2, 1989, Holly Engdahl, a student at
2
Montana State University, was awakened in her bedroom by a man
wearing a ski mask and gloves. The attacker told Engdahl to "shut
up1'and jabbed Holly repeatedly with a device later identified as
a ''stun gun,'' leaving burns on Engdahl's body. Engdahl also
suffered bruises and a bloody nose in the attack.
The two struggled, and Engdahl broke free and ran to the
basement of her condominium, where she tried the telephone, which
was inoperable, and hid for a few minutes. When all was quiet,
Engdahl came out of her hiding place. She then heard a noise and
went to the gun cabinet. As Engdahl unlocked the gun cabinet, a
bullet was fired from upstairs through the floor, striking the gun
cabinet and the light switch. Engdahl grabbed a rifle from the gun
cabinet and heard the front door shut. carrying the rifle, she ran
in her nightshirt and bare feet through snow to a neighbor's
residence for help.
Engdahl thought that her assailant's voice sounded similar to
that of a neighbor, Owen Evans, whom she had known for a number of
years. Evans had sent Engdahl flowers and asked her for dates,
which she refused after going out with him twice. police searched
Evans' condominium, one door down from Engdahl's residence. They
seized several items demonstrating Evans1 obsession with Engdahl,
including a calendar noting when various people had come to her
condominium. Police also seized a cassette tape of recorded phone
conversations between Engdahl and other people and later discovered
that Evans had tapped Engdahl's phone.
The police additionally seized a slide and barrel mechanism
for a .45 caliber handgun, a box of instructions for a Defender Pro
40 stun gun, and battery chargers with a 9-volt rechargeable
battery, the size necessary to operate the stun gun. Police also
took a wallet containing forms of identification belonging to the
defendant, cash, and credit cards.
When the police searched Evans1 pickup truck, they discovered
two loaded .45 caliber magazines and numerous rounds of .45 caliber
ammunition.
On March 4, 1990, the police issued a warrant for Evans1
arrest, and the next day his truck disappeared. One of Evans1
credit card companies, contacted by police, notified them that
Evans had used a credit card in Pocatello, Idaho. Pocatello police
apprehended Evans who consented to a search of his truck. Police
seized a gym bag containing 30 items, including a .45 caliber
pistol frame and a Defender Pro 40 model stun gun. Evans later
moved for suppression of the evidence contained in the gym bag on
the ground that two items in the bag, two tubes of lubricant, were
omitted in the inventory of its contents.
Police were able to piece together where Evans had hidden from
the time of the attack until he left in his truck. Distinctive
footprints led from Engdahl's condominium to condominium No. 34
owned by a woman who lived out of town. Engdahlls fingerprints
were found on a light bulb and telephone in the condominium. Some
items missing from condominium 34 were later found in Evans1
possession. The police also seized a Ruger .44 caliber pistol
taken from the gun case in Engdahlls condominium, a slide and
barrel mechanism for a .45 caliber handgun, a black knit ski mask,
and a pair of tennis shoes.
The cartridge casing taken from Engdahlls condominium matched
the .45 receiver taken from Evans' truck in Pocatello and the
barrel and slide found in condominium 34. The hairs found on the
ski mask were substantially similar to those taken from Evans1
head. The tennis shoes matched the prints in the snow leading from
Engdahlls condominium to condominium 34.
The morning after the attack, Engdahl's automobile was
discovered missing. Her car was later found in the garage for
condominium 34. Plastic garbage bags had been stapled over the
garage windows. Staples used to secure the garbage bags matched
fired staples from a staple gun seized from Evans1 condominium.
Evans presented no evidence at trial. He was found guilty of
all four offenses with which he was charged. During the sentencing
hearing, an expert testified that Evans was not suffering from
amnesia as he had claimed, that he had a preoccupation with
weaponry and methods of restraint, and that he showed indications
that he was a sexual psychopath or sexual sadist.
The District Court imposed the following prison sentence on
Evans :
1. Aggravated burglary: 40 years with an additional 10 years
for use of a weapon, the stun gun.
2. Felony assault: 10 years with 10 additional years for use
of the stun gun to be served concurrently with the above sentence.
3. Felony assault: 10 years with 10 additional years for
firing a gun, to be served consecutively to the sentence imposed
for counts one and two.
4. Felony theft: 10 years to be served consecutively to the
sentences for counts one, two, and three.
The ~istrictCourt designated Evans as a sexual offender to
receive sexual offender treatment in Montana State prison and
ordered that Evans not be released for parole until he had
satisfactorily completed such treatment. The court also declared
Evans ineligible for parole for 25 years.
I
Did the jury improperly find a llstun-gunll be a weapon for
to
purposes of aggravated burglary and felony assault?
Owen Evans was convicted of one count of felony assault
arising from the attack upon Holly Engdahl with an electric stun
gun. The difference between misdemeanor assault and felony assault
is whether a weapon is used to cause bodily harm:
(2) A person commits the offense of felony assault
if he purposely or knowingly causes:
(a) bodily injury to another with a weapon;
(b) reasonable apprehension of serious bodily injury
in another by use of a weapon; or
(c) bodily injury to a peace officer or a person who
is responsible for the care or custody of a prisoner.
Section 45-5-202 ( 2 ) , MCA. A "weapon" is Itanyinstrument, article,
or substance which, regardless of its primary function, is readily
capable of being used to produce death or serious bodily injury."
Section 45-2-101(71), MCA. In turn, llseriousbodily injury1' is
6
defined as follows:
I1Serious bodily injuryI1 means bodily injury which
creates a substantial risk of death or which causes
serious permanent disfigurement or protracted loss or
impairment of the function or process of any bodily
member or organ. It includes serious mental illness or
impairment.
Section 45-2-101(59), MCA. Evans claims that the State did not
show that a stun gun meets the statutory requirements of 5 5 45-2-
lOl(71) and (59), MCA, by demonstrating that a stun gun is capable
of causing death, llsubstantial
risk of death," or Itprotractedloss
or impairment of the function or process of any bodily member or
organ.
The test for sufficiency of the evidence with respect to a
factual element of a crime is whether any rational trier of fact
could have found that element beyond a reasonable doubt. State v.
Earl (Mont. 1990), 790 P.2d 464, 465, 47 St.Rep. 351, 353. The
weapon produced burns on Engdahllsbody, and Engdahl testified that
she was burned by I1some sort of device that every time it touched
me, it set off sparks. And it would drain me. I Id feel real
drained after I got hit with it." Further, the stun gun
instructions admitted into evidence stated:
A short blast of 1/4 second duration will startle an
attacker, cause minor muscle contractions and have a
repelling effect.
A moderate length blast of 1 to 4 seconds can cause an
attacker to fall to the ground and result in some mental
confusion. It may make an assailant unwilling to
continue an attack, but he will be able to get up almost
immediately.
A full charge of 5 seconds can immobilize an attacker,
cause disorientation, loss of balance, falling to the
ground and leave them weak and dazed for some minutes
afterward.
NOTE: Any blast lasting over 1 second is likely to cause
your assailant to fall. If you do not help them down,
gravity may injure them.
The instructions show that a stun gun is capable of immobilizing
a person and could seriously injure a person who falls after being
shocked by the gun.
Previously, instruments potentially less harmful than a stun
gun have been found to be weapons. We have upheld the jury's
finding that an ashtray is a weapon. State v. Klemann (Mont.
1981), 634 P.2d 632. A pair of panty hose qualified as a weapon
in State v. Howard (1981), 195 Mont. 400, 637 P.2d 15. In State
v. Matson (1987), 227 Mont. 36, 736 P.2d 971, a pellet gun was said
to be a weapon.
Statutes in Illinois, Michigan, North Carolina, North Dakota,
and the City of New York describe stun guns as weapons. See Ill.
Rev. Stat. ch. 38, para. 24-1 (1985); Mich. Comp. Laws § 750.224 (a)
(Supp. 1990); N.C. Gen. Stat. 5 14-269(a) (1990); N.D. Cent. Code
§ 62.1-01-Ol(1) (1985); New York City Adm. Code 5 10-135 (a)-(d) .
The New York City Council made it an offense to possess or sell a
stun gun because stun guns "Imay be used by criminals to subdue and
disable their victims while engaged in the commission of crimes
against them. People v. Lynch (N.Y. City Crim. Ct. 1989), 546
N.Y.S.2d 538, 539 (quoting Local Laws 1985, No. 38, Section 1).
Recently, the Ninth Circuit Court of Appeals upheld a
conviction of boarding an airplane while concealing a dangerous
weapon where the defendant had a concealed stun gun. U.S. v.
Wallace (9th Cir. 1986), 800 F.2d 1509, cert. denied, 481 U.S.
1019, 107 S.Ct. 1901, 95 L.Ed.2d 507. According to federal
caselaw, a dangerous weapon is an instrument which is capable of
producing death or great bodily harm, a definition similar to the
Montana definition of a weapon. See United States v. Dishman (9th
Cir. 1973), 486 F.2d 727, 730. Rejecting the defendant's argument
that a stun gun merely incapacitates its victims temporarily and
cannot inflict serious permanent harm, the court noted that a
single stun gun could incapacitate twenty to forty people at a time
and could cause permanent injury to the eyes. Wallace, 800 F. 2d
at 1513. In Matson the rationale for finding a pellet gun to be
a weapon was that ' a high-velocity pellet in the eye is certainly
'
capable of inflicting 'serious bodily injury."' Matson, 227 Mont.
at 40-41, 736 P.2d at 974.
The jury's finding that a stun gun is a weapon is consistent
with federal caselaw, statutes of other states, and Montana law
and is supported by the evidence. We hold that the evidence is
sufficient for the trier of fact to deduce that a stun gun is a
weapon capable of producing serious bodily injury as defined by 5 5
45-2-lOl(71) and (59), MCA.
I1
Did the District Court err in failing to instruct the jury on
the definition of a weapon under Montana law and on the lesser
included offense of assault?
Evans claims that the District Court failed to instruct the
jury on the definition of a weapon, which in turn meant that the
jury should have been instructed on simple assault, as well as
aggravated assault.
Since Evans failed to object to the instruction at trial, he
is now precluded from raising the issue on review. Section 46-
20-104 (2), MCA, provides that [f] ailure to make a timely objection
during trial constitutes a waiver of the objection except as
provided in 46-20-701(2) . Since 5 46-20-701(2), MCA, does not
apply, Evans may not challenge this instruction on appeal. State
v. Smith (1984), 208 Mont. 66, 71-74, 676 P.2d 185, 188-190.
In addition, Evans failed to offer an instruction that
misdemeanor assault is a lesser included offense of burglary.
Error may not be predicated upon the failure to give an instruction
when the party alleging the error failed to offer the instruction.
State v. Smith (1987), 228 Mont. 258, 265, 742 P.2d 451, 455. We
decline to consider this issue because it is not properly before
the Court.
I11
Was Evans subjected to double jeopardy by being convicted for
both aggravated burglary and felony assault?
Evans claims that since a stun gun is not a weapon, he was
subjected to double jeopardy by being punished twice for the same
misdemeanor assault arising from the use of the stun gun and also
by having two sentencing enhancements for use of a weapon.
Since we have held that the evidence was sufficient for the
jury to conclude that the stun gun was a weapon, Evans1 argument
is moot.
In addition, Evans asserts that the District Court erred in
imposing sentences for both aggravated burglary and felony assault.
Aggravated burglary and felony assault are two distinct offenses
requiring proof of several different elements. One can commit
aggravated burglary without perpetrating aggravated assault, and
one can carry out aggravated burglary without performing aggravated
assault. State v. Wells (1983), 202 Mont. 337, 352, 658 P.2d 381,
389. As explained in Wells:
The legislature unmistakably intended multiple
punishments for the offenses of aggravated burglary and
aggravated assault. If a person enters or remains
unlawfully in an occupied structure with the intent to
commit an aggravated assault, he has committed a
burglary. If he then commits the aggravated assault, he
may be convicted of it and sentenced for it in addition
to conviction and sentencing for the burglary.
Wells, 202 Mont. at 354, 658 P.2d at 390. Evans' conviction of
both crimes did not constitute double jeopardy.
Did the District Court err in failing to exclude from evidence
the contents of Evans1 gym bag when it was shown to contain items
not listed on the original inventory when the bag was seized?
Evans asserts that the omission of two items from the
inventory of the contents of the gym bag demonstrated a substantial
change of the evidence warranting that the gym bag and its contents
be excluded from evidence. Since the bag contained a stun gun, the
evidence was critical to the charges against Evans.
Determination of whether a proper foundation has been laid for
the introduction of exhibits into evidence rests with the trial
court and its determination will not be overturned on appeal absent
clear abuse of discretion. State v. Fox (1984), 212 Mont. 488,
491, 689 P.2d 252, 254. To support proper identification and
foundation, the prosecution must show that the exhibit is connected
with the crime and identified as such. McGuinn v. State (1978),
177 Mont. 215, 221, 581 P.2d 417, 421.
Montana recognizes two methods of identifying physical
evidence: ready identification and chain of custody. When the
evidence has a unique characteristic that makes it readily
identifiable, chain of custody need not be shown. State v. Conrad
(Mont. 1990), 785 P.2d 185, 189, 47 St.Rep. 32, 37. Here, the
chain of custody method was appropriate. The burden is on
defendant to show any tampering prior to acquisition of the
evidence. State v. Walton (1986), 222 Mont. 340, 343, 722 P.2d
1145, 1147. The burden is on the prosecution to demonstrate that
after the State acquired the evidence, no substantial change in the
evidence occurred and that the evidence was in the State's
continuous possession. Conrad, 785 P.2d at 189, 47 St.Rep. at 37.
The exhibit was identified as the same bag that was seized
from Evansf truck. The officer testified that the bag was in the
same condition as when it was seized and established its chain of
custody. Two items out of thirty in the bag were omitted from the
inventory due to a clerical error.
A defect or deficiency with respect to proper identification,
such as a clerical error, goes to the weight of evidence and not
its admissibility. State v. Grant (1986), 221 Mont. 122, 134, 717
P.2d 562, 570. As in Grant, the defendant challenged the chain of
evidence in front of the jury, and the jury had the opportunity to
weigh the evidence. Further, no evidence exists of any change in
the items in the bag or tampering with the evidence. We hold that
the District Court did not abuse its discretion in admitting the
bag and its contents.
v
Did the District Court err in allowing the testimony of
William Kayser as an expert in the field of handwriting analysis
and questioned document examination?
Evans maintains that Kayser should not have been qualified as
an expert pursuant to Rule 702, M.R.Evid., because his training and
experience as an expert in handwriting analysis and questioned
document examination were inadequate.
Under Rule 702, M.R.Evid., a witness may be qualified as an
expert by knowledge, skill, experience, training, or education.
The determination that a witness is an expert is largely within the
discretion of the trial judge, and such determination will not be
disturbed on appeal unless the court is shown to have abused its
discretion. State v. Martin (1987), 226 Mont. 463, 736 P.2d 477.
"The degree of a witness1 qualifications affects the weight of the
expert's testimony, not its admissibility.I1 Martin, 226 Mont. at
466, 736 P.2d at 479.
William Kayser, a detective with the Bozeman Police
Department, had taken a two-week questioned document course, had
worked on approximately 20 criminal cases as a handwriting expert,
and was spending approximately 25 percent of his time on the
examination of questioned documents. Based on his experience and
training, he gave a very complete examination of the documents in
this case.
As we have previously stated, ll[c]ross-examination is the
shield to guard against unwarranted opinion^.^^ Stewart v. Casey
(1979), 182 Mont. 185, 193, 595 P.2d 1176, 1180. In addition, the
defense was free to offer testimony rebutting the detective's
analysis, but did not do so. The District Court instructed the
jury that the jury could give expert testimony whatever weight it
deserved and could reject the testimony entirely, if in the jury's
opinion the testimony was unsound. We hold that the District Court
did not abuse its discretion by allowing Detective Kayser to
testify as an expert.
VI
Was the sentence imposed by the District Court improper due
to its scope and severity?
Evans contends that he should not have been charged with
felony assault for use of the stun gun because a stun gun is not
a weapon under Montana law. Since we have upheld the jury's
treatment of a stun gun as a weapon, the charge of felony assault
is appropriate, and the District Court did not err in enhancing
Evans1 sentence for use of a weapon.
Evans also alleges that the District Court abused its
discretion in denying eligibility for parole for twenty-five years
and requiring sexual offender treatment.
Ineligibility for parole is governed by 5 46-18-202(2), MCA:
Whenever the district court imposes a sentence of
imprisonment in the state prison for a term exceeding 1
year, the court may also impose the restriction that the
defendant be ineligible for parole and participation in
the supervised release program while serving his term.
If such a restriction is to be imposed, the court shall
state the reasons for it in writing. . . .
The District Court stated in its Reasons for Sentence:
[The defendant] is deemed to be shrewd, self-serving,
deceitful, extremely dangerous, a high risk for escape
and for future crimes. The court also takes into account
the testimony in this case which indicates a very
thorough preparation for the crime on behalf of the
defendant, an insidious invasion into the privacy of the
victim, the tapping of her phone wires, the ordering of
lingerie in her name deliverable to him, the careful
analysis of the Montana Criminal Code to see what crimes
he would be committing and what the consequences of those
crimes would be, a very elaborate attempt to set up the
crime and to cover his escape.
The District Court designated Evans as a I1dangerousperson,I1
taking the defendant out of the category of llnondangerous
offender"
pursuant to § 46-18-404 (1), MCA. We have previously held that a
defendant need not have had a prior criminal record to "represent
a substantial danger to other persons or society,11as required by
5 46-18-404(1), MCA. State v. Baldwin (1990), 242 Mont. 176, 184-
86, 789 P.2d 1215, 1221-22. Similarly, we hold that the District
Court set forth sufficient reasons for finding that Evans is not
a nondangerous offender and for limiting his eligibility for parole
to 25 years pursuant to 5 46-18-202(2), MCA.
In exacting additional sentencing restrictions, such as sexual
offender treatment, the District Court must comply with 5 5 46-18-
201 and 202, MCA. Pursuant to 5 46-18-201(1) (a)(x), MCA,
reasonable restrictions may include Ifany . . . reasonable
conditions considered necessary for rehabilitation or for the
protection of society. '
I Pursuant to 5 46-18-202 (1)(e), MCA, the
court may impose any restriction or condition "reasonably related
to the objectives of rehabilitation and the protection of society.I1
The sentencing condition must correlate with either the
rehabilitation of the offender or the protection of society. State
v. Black (Mont. 1990), 798 P.2d 530, 534, 47 St.Rep. 1677, 1682.
In Black the District Court found the court's additional sentencing
condition of sexual offender treatment reasonable since the record
supported the sexual nature of the assault conviction and the
defendant's need for sexual offender treatment. Black, 798 P.2d
at 534-35.
The record reveals Evanst obsession with the victim and
suggests a sexual motive for the assault. In addition, during the
sentencing hearing, a psychologist testified that Evans could be
a 'Isexual psychopathl1 or "sexual sadistu and recommended that he
be fully evaluated by an expert in this field. We hold that the
District Court did not err in imposing the condition of sexual
offender treatment as part of Evans1 sentence since it correlates
with Evans1 need for rehabilitation.
Evans also alleges that the District Court abused its
discretion in imposing the maximum sentence on each count and
enhancing the sentence for use of a weapon. To the extent that
Evans is disputing the severity of the sentence, he must seek
relief from the Sentence Review Division. As we have long held,
"I[w]e will not review a sentence on appeal for mere inequity or
disparity. Such a review is to be conducted by the Sentence Review
Division.111State v. Almanza (1987), 229 Mont. 383, 386, 746 P.2d
1089, 1090-91 (quoting State v. Lloyd (1984), 208 Mont. 195, 199,
676 P.2d 229, 231).
We hold that the District Court did not abuse its discretion
in sentencing Evans.
VII
Did the District Court properly exclude Evans1 parents, who
were potential witnesses, from the courtroom?
Evans complains that the District Court should not have
excluded his parents from the courtroom because it deprived him of
their comfort and support during the trial.
Sequestration of witnesses is a matter of discretion with the
court. State v. Radi (1975), 168 Mont. 320, 326, 542 P.2d 1206,
1210. Although Evans1 parents did not testify, they were listed
as potential witnesses at the beginning of the trial. We hold that
the District Court did not abuse its discretion in excluding Evans1
parents from the courtroom since they were potential witnesses.
Affirmed.