NO. 95-335
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
STATE OF MONTANA,
Plaintiff and Respondent,
v.
DAVID B. LAMBERT,
Defendant and Appellant.
APPEAL FROM: District Court of the Twenty-First Judicial District
In and for the County of Ravalli,
The Honorable Jeffrey Langton, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
William F. Hooks, Appellate Defender, Helena,
Montana
For Respondent:
Joseph P. Mazurek, Attorney General, Cregq W.
Couqhlin, Assistant Attorney General, Helena,
Montana; George Corn,. Ravalli County Attorney,
Hamilton, Montana
Heard: September 19, 1996
Submitted: September 19, 1996
Decided:;.; December 16, 1996
,.~2~,.',
Filed:
Justice William E. Hunt, Sr. delivered the Opinion of the Court
Following a jury trial in the Twenty-first Judicial District
court, Ravalli County, David B. Lambert (Lambert) was found guilty
of criminal endangerment, a felony, and was sentenced to a term of
years at the Montana State Prison. Lambert appealed.
We reverse and remand with instructions.
We address the following issue:
Did the District Court apply an incorrect mental state element
to the offense of criminal endangerment?
FACTS
On August 20, 1994, Christine Peterson, along with her three
children and a friend of theirs, was driving south on U.S. Highway
93 toward Darby, Montana, Peterson's hometown. The group had just
spent the day in Missoula shopping for school clothes. As they
approached the town of Stevensville, travelling at about 50 or 55
miles per hour, Ms. Peterson saw a car pulling out of a roadside
parking lot to her left. That car, driven by Lambert, proceeded
across the highway immediately ahead of Ms. Peterson's car, and Ms.
Peterson applied her brakes, expecting to collide with the middle
or rear side of Lambert's car. Instead, Lambert turned his car
toward Ms. Peterson's car; his car was now facing north in Ms.
Peterson's southbound lane, and the two vehicles collided head-on.
Witnesses at the scene immediately after the collision
occurred noted that Lambert smelled and acted as if he had been
drinking. A Montana highway patrol officer, after questioning
Lambert and conducting a field sobriety test, determined that
2
Lambert had indeed been drinking and suspected that he was
intoxicated. Lambert was unable to provide the officer a driver's
license or proof of auto insurance, and the officer soon discovered
that Lambert's driving privileges had previously been revoked.
Lambert was ultimately charged with the following offenses:
criminal endangerment; DUI; driving while license suspended or
revoked; failure to have auto insurance; and failure to use a
seatbelt.
Lambert proceeded to trial on the charges of criminal
endangerment and DUI, having previously entered guilty pleas to the
other three charges. After the State presented its case-in-chief,
Lambert moved for an acquittal of the criminal endangerment charge,
claiming that the State had not proven beyond a reasonable doubt
that Lambert had acted "knowingly," the requisite mental state for
the offense of criminal endangerment. The court denied Lambert's
motion, after first hearing arguments from Lambert and the State
regarding which definition of "knowingly" applied to criminal
endangerment.
After the defense rested without calling any witnesses, the
parties and the court settled jury instructions. The court decided
t o instruct the jury on three out of four definitions of
"knowingly" contained in a pattern jury instruction, and to
instruct the jury that Lambert did not need to intend the result
that occurred in order to have acted with the requisite mental
state. The court also decided to instruct the jury that a person
in an intoxicated condition is criminally responsible for his
3
conduct, and that an intoxicated condition could not be taken into
account in determining the existence of a mental state which is an
element of the offense. Lambert objected to these instructions.
The jury returned a verdict finding Lambert guilty of criminal
endangerment, but did not return a verdict on the 'DUI charge.
Lambert was subsequently sentenced to a term of years at the
Montana State Prison. This appeal followed.
DISCUSSION
Did the District Court apply an incorrect mental state element
to the offense of criminal endangerment?
Lambert argues that the District Court misinterpreted the
meaning and application of "knowingly," the mental state element of
the offense of criminal endangerment. We review a district court's
interpretation or application of the law to determine if that
interpretation or application was correct. State v. Christensen
(1994), 265 Mont. 374, 877 P.2d 468.
Section 45-5-207(l), MCA, provides, in pertinent part, that a
person commits the offense of criminal endangerment if he
"knowingly engages in conduct that creates a substantial risk of
death or serious bodily injury to another." Section 45-2-101(34),
MCA, provides multiple definitions of'"knowingly":
[A] person acts knowingly with respect to conduct or to
a circumstance described by a statute defining an offense
when the person is aware of the person's own conduct or
that the circumstance exists. A person acts knowingly
with respect to the result of conduct described by a
statute defining an offense when the person is aware that
it is highly probable that the result will be caused by
the person's conduct. When knowledge of the existence of
a particular fact is an element of an offense, knowledge
4
is established if a person is aware of a high probability
of its existence.
In denying Lambert's motion for acquittal, the court determined
that "knowingly," the mental state 'element of the offense of
criminal endangerment, could be established by evidence showing
that a defendant was aware of his conduct. The court decided that
the State had presented sufficient evidence on this issue for the
case to go to the jury. Later, when settling jury instructions,
the court determined that it would instruct the jury as to three
distinct definitions of "knowingly." Instruction No. 12, given to
the jury, reads as follows:
Knowingly
A person acts knowingly:
(1) when he is aware of his conduct or
(2) when he is aware under.the circumstances that
his conduct constitutes a crime or
(3) when he is aware there exists the high
probability that his conduct will cause a
specific result. (Emphasis added.)
Lambert argues that the court applied an incorrect mental
state element to the offense of criminal endangerment, and that the
court, in relying on this mistaken interpretation of the law, erred
in denying Lambert's motion for an acquittal and erred in
instructing the jury with respect to the applicable definition of
"knowingly." We will review the court's interpretation of the law,
and then determine whether it was proper for the court to rely on
5
this interpretation of the law in denying Lambert's motion for
acquittal and in instructing the jury.
Lambert contends that the different definitions of "knowingly"
found in § 45-Z-101(34), MCA, distinguish between different
elements of criminal offenses, and that therefore "the statute
defining the offense" governs which definition of "knowingly"
applies. Lambert contends that the offense of criminal
endangerment is defined in terms of the result of conduct. Under
that construction, Lambert argues that in order to prove the
"knowingly" element of criminal endangerment beyond a reasonable
doubt; the State must establish that an accused was aware of the
high probability that his conduct would cause a substantial risk of
death or serious bodily injury to another. Lambert contends that
we reached this same conclusion in State v. Crisp (19911, 249 Mont.
199, 814 P.2d 981.
In Crisp, we rejected a constitutional challenge to the
criminal endangerment statute. The defendant in that case alleged
that the statute was unconstitutionally vague because it did not
require a specific intent to cause the substantial risk. We noted
that the appropriate mental state was "knowingly," set out the
definitions of "knowingly" provided in § 45-2-101(33), MCA (these
same definitions of "knowingly" are now found in § 45-2-101(34),
MCA (1995)), and concluded that "[alccordingly, a defendant commits
the crime of criminal endangerment when he is aware that there is
a high probability that his conduct may cause a substantial risk of
death or serious bodily injury to another." Crisp, 814 P.2d at 983.
6
The State argues that our holding in Crisp does not imply that
there can be only one definition of "knowingly" applied to the
offense of criminal endangerment. Put another way, the State
argues that in defining criminal endangerment as we did in Crisp,
we were merely asserting one of a number of different definitions
of "knowingly" that could apply. The State also contends that
Crisp is not controlling here because the issue of which definition
of "knowingly" applied to criminal endangerment was not before us
in that case. In any event, the State argues that the definition
of "knowingly" that we used in Criso was incorrect; the language of
the criminal endangerment statute plainly provides that "knowingly"
refers to a defendant's conduct, not the result of his conduct.
While we agree with the State that our holding in Crisp does
not directly control the disposition of the matter before us, we
cannot agree that in Crisu we applied the wrong definition of
"knowingly" to the offense of criminal.endangerment. Moreover, we
cannot agree that any one of the definitions of "knowinglyl' found
in 5 45-2-101(34), MCA, is applicable to the offense of criminal
endangerment. Finally, agreeing as we do that the issue of what
definition of "knowingly" applies to this offense has not
previously been before this Court does not require us to ignore how
we have consistently articulated the elements of criminal
endangerment. See Criso, 814 P.2d at 983; State v. Smaage (1996),
276 Mont. 94, 98, 915 P.2d 192, 195. We find Lambert's arguments
persuasive, and dispose of this issue in his favor.
7.
Our reading of the criminal endangerment statute is that it
emphasizes result over conduct. The portion of the statute that we
are reviewing here does not particularize the conduct that, if
engaged in, results in the commission of the offense. Rather, a
person may engage in a wide variety of conduct and still commit the
offense of criminal endangerment, provided that the conduct creates
a substantial risk of death or serious bodily harm. It is the
avoidance of this singular result, the risk of death or serious
harm, that the law attempts to maintain.
There being no particularized conduct which gives rise to
criminal endangerment, applying to that offense's mental element
the definition of "knowingly" that an accused need only be aware of
his conduct is incorrect. It is the appreciation of the probable
risks to others posed by one's conduct that creates culpability for
criminal endangerment; were it otherwise, where culpability could
lie for mere appreciation of one's conduct, such as driving a car
or shooting a hunting rifle, some very unfair results could follow.
In our view, the relevant statutory scheme recognizes and
addresses these concerns. As Lambert points out, 5 45-2-101(34),
MCA, provides on the one hand that "a. person acts knowingly with
respect to conduct . . . described by a statute defining an offense
when the person is aware of the person's own conduct . . ..I'. and
provides on the other hand that "[a] person acts knowingly with
respect to the result of conduct described by a statute defining an
offense when the person is aware that it is highly probable that
the result will be caused by the person's conduct." (Emphasis
added. ) Conduct is not described by § 45-5-207(l), MCA, but the
result of conduct is: "a substantial risk of death or serious
bodily harm."
In addition, § 45-2-103(4), MCA, explains that "[iIf the
statute defining an offense prescribes a particular mental state
with respect to the offense as a whole without distinguishing among
the elements of the offense, the prescribed mental state applies to
each element." The criminal endangerment statute provides that the
mental state "knowingly" applies, without apparent distinction, to
the elements (1) engage in conduct (2) that creates a substantial
risk of death or serious bodily harm to another. According to 5
45-2-103 (41, MCA, "knowingly" applies to both conduct and the
result of that conduct.
We conclude that the "knowingly" element of criminal
endangerment contemplates a defendant's awareness of the high
probability that the conduct in which he is engaging, whatever that
conduct may be, will cause a substantial risk of death or serious
bodily injury to another.
We hold that the District Court incorrectly applied as the
mental element of the offense of criminal endangerment the
definition of "knowingly" that a defendant need only be aware of
his conduct. We also hold when the District Court relied on this
misinterpretation of the law in denying Lambert's motion for
acquittal and in instructing the jury, the court committed
reversible error. The general effect of the court's
misinterpretation, manifest in the two rulings complained of, was
9
to alter the State's burden of proving beyond a reasonable doubt
the elements of the offense: to prove that a defendant was aware of
his conduct is one thing; to prove that he was aware of the high
probability of the risks posed by his conduct is quite another.
The particular effect of the court's interpretation is a violation
of due process rights as provided by Article II, Section 17 of the
Montana Constitution.
We remand this case to the District Court to reconsider the
motion for acquittal under the standard set forth in this opinion.
If the evidence presented at trial was'not sufficient to establish
the element that the defendant was aware of the high probability of
the risk posed by his conduct, the motion for acquittal must be
granted. If the court finds that the State's evidence was
sufficient to withstand the motion for acquittal, then the court
must grant a new trial because of the erroneous jury instruction.
We reverse and remand for reconsideration of appellant's motion for
acquittal. If the motion for acquittal is denied then a new trial
must be granted.
Reversed and remanded with instructions.
We Concur:
Chief Justice
Justices
11
Justice Terry N. Trieweiler specially concurring.
I concur with the majority opinion. I write in response to
the dissent which, in my opinion, ignores the plain language of the
statute we have been asked to construe, relies on authorities which
are not remotely related to the issue we have been asked to decide,
and would treat simple negligence as a felony punishable by ten
years in prison and a $50,000 fine.
Although the dissent correctly states that when we interpret
a statute we should neither insert what has been omitted nor omit
what has been inserted, the dissent repeatedly omits critical
language from § 45-5-207, MCA, when it discusses that statute. The
criminal endangerment statute does not, as the dissent suggests,
simply punish someone who "knowingly engages in conduct." It
punishes someone who "knowingly engages in conduct that creates a
substantial risk of death or serious bodily injury." Any
straightforward analysis of what "knowingly" refers to in the
criminal endangerment statute must include the qualitative
description of the kind of conduct that is engaged in. The dissent
repeatedly ignores that critical language.
For example, it is clear, based on the plain language of the
statute, that it would not be sufficient to prove that a person
knowingly drove in a northerly direction in a southbound lane if he
or she assumed that the road was closed for construction. The
statute, by its plain terms, would only punish that type of conduct
if a person drove in a northerly direction in a southbound lane
knowing that southbound traffic might also be using that lane. Any
12
other interpretation is nonsensical. It is not knowingly engaging
in conduct that is prohibited; it is knowingly engaging in a
specific type of conduct that is prohibited. It is impossible to
grammatically separate "knowingly" from the specific danger
presented by a person's conduct.
The dissent goes to great lengths to point out that based on
the facts in this case there was, obviously, evidence that Lambert
was aware that his conduct would create a substantial risk of harm
to others. I agree. However, it is impossible for us to say that
his conviction was based on a finding by the jury that he was aware
that his conduct presented a substantial risk of harm to others
because the jury was never properly advised that that kind of
finding had to be the basis for its verdict. Therefore, it makes
no difference what a rational trier of fact could have found based
on the evidence in this case, because we do not know what this jury
would have found had it been correctly instructed regarding the law
applicable to this case.
None of the cases cited by the dissent involved an issue
regarding the necessary mental state for the crime of criminal
endangerment. None of them involved a jury instruction related to
the necessary mental state for the crime of criminal endangerment.
At most, they discuss facts, and conclude that those facts could or
could not suffice to support a conviction for the crime.
Therefore, I see no point to the dissent's reliance on them as
authority for the issue with which we are concerned in this case.
13
In this case, there is evidence that the defendant, after
consuming alcoholic beverages, entered the highway in the wrong
direction, knowing that to do so would create a substantial risk of
harm to other motorists on the highway. However, based on the
argument of the dissent, the same conduct could be punished as a
felony under circumstances which would have led no one to believe
that it was dangerous. For example, assume that the same stretch
of highway was under construction and was closed off to through
traffic at points north and south of Lambert's point of entry.
Assume that instead of Lambert entering the highway at that
location, a vehicle driven by an employee of the State Department
of Transportation turned onto the highway, proceeding in a
northerly direction in the southbound lane, but believing that the
highway barricades would be honored and no one else would be using
the highway. Further assume that it was Lambert proceeding in the
southbound lane, but that he had ignored the construction signs,
and therefore, collided with the Transportation Department vehicle.
Based on the dissent's interpretation of the criminal endangerment
statute, it would be the driver of the Transportation Department
vehicle who committed a felony punishable by ten years in prison
and a $50,000 fine because the driver of that vehicle knowingly
engaged in the same conduct that Lambert engaged in in this case.
The fact that the driver of that vehicle had every reasonable
expectation that what he did was safe would make no difference
under the law.
14
The dissent is based on a grammatically incorrect reading of
the statute, finds no support in the prior decisions of this Court,
and would lead to absurd results.
For these reasons, I concur with the majority opinion.
15
Justice W. William Leaphart, specially concurring.
I concur in the opinion of the Court and write separately to
address what I see as the fallacy in the reasoning of the dissent.
At issue is the question of which definition of "knowingly" is
appropriate in the context of a charge of criminal endangerment.
Knowingly" is defined in § 45-2-101(33), MCA (1993), as follows:
[A] person acts knowingly with respect to conduct or to
a circumstance described by a statute defining an offense
when the person is aware of the person's own conduct or
that the circumstance exists. A person acts knowingly
with respect to the result of conduct described by a
statute defining an offense when the person is aware that
it is highly probable that the result will be caused by
the person's conduct. When knowledge of the existence of
a particular fact is an element of an offense, knowledge
is established if a person is aware of a high probability
of its existence. Equivalent terms, such as "knowing" or
"with knowledge", have the same meaning.
The trial court used the smorgasbord approach and instructed
the jury such that it could employ any one of the definitions
contained in 5 45-2-101(33), MCA (1993). Court's instruction #12
read as follows:
A person acts knowingly:
(1) when he is aware of his conduct or
(2) when he is aware under the circumstances that his
conduct constitutes a crime or
(3) when he is aware there exists the high probability
that his conduct will cause a specific result.
In rejecting this approach, the majority has held that, in essence,
the court cannot give the jury the choice of which definition
applies to the crime charged; rather, the statute defining the
crime dictates which definition of l'knowingly" is appropriate.
The first of the three definitions presented to this jury
16
stated: "A person acts knowingly when he is aware of his conduct."
Although some crimes only require that a person engage in conduct,
without regard to any result, criminal endangerment is not such a
crime. For example the charge of issuing a bad check, § 45-S-
316 (1) , MCA, only requires:
(1) A person commits the offense of issuing a bad
check when the person issues or delivers a check or other
order upon a real or fictitious depository for the
payment of money knowing that it will not be paid by the
depository.
In a trial for issuing a bad check, it would be appropriate to
instruct the jury that a person acts "knowingly" when he is aware
of his conduct, that is, when he is aware that the check will not
be paid by a depository. The crime, by definition, focuses
entirely upon conduct. The crime is complete upon passing of the
bad check regardless of any result. That is, it matters not
whether anyone attempts to negotiate the check or whether anyone is
defrauded.
The § 45-2-101(33), MCA (1993), definitions of "knowingly"
draw a distinction between (1) statutes which do nothing more than
proscribe conduct (without regard to result), and (2) statutes
which not only describe conduct, but also focus on the result of
that conduct.
Justice Nelson in his dissent contends that the crime of
criminal endangerment is similar to a bad check charge in that it
does not require that the defendant act knowingly with respect to
the result of the conduct. Specifically, he reviews numerous
decisions of this Court involving criminal endangerment and
concludes that:
17
In each case we have focused on conduct which creates a
substantial risk as that which is proscribed by a
statute. The result of that conduct was wholly
irrelevant in our prior decisions. It was irrelevant
that no particular victim was identified as being put at
risk by the conduct at issue; it was irrelevant that no
one was actually injured by the conduct at issue.
Rather, we focused entirely on the risk-creating nature
of each defendant's conduct.
For example, Justice Nelson cites State v. Smaage (1996), 276
Mont. 94, 915 P.2d 192, which involved a defendant with eight prior
DUIs who was convicted of criminal endangerment. While drunk,
Smaage swerved down a city street during early morning traffic.
Smaase, 915 P.2d at 193. Smaage's conduct was the driving while
drunk. However, in order to convict him of criminal endangerment,
the State had to do more than prove that he was aware that there
was a high probability of his conduct, that is, prove more than
that he knowingly drove his car while drunk. As Justice Nelson
points out, the State did not have to prove that his conduct
actually resulted in bodily injury. It did, however, have to prove
that he was aware that there was a high probability that his
driving, under those circumstances, created a specific result, that
is, a substantial risk of death or serious bodily injury. Smaase,
915 P.2d at 194.
Justice Nelson seems to read conduct as including the risk
inherent in the conduct; that the conduct and the result are one in
the same. In contrast, the Court's decision is premised on the
understanding that the risk (the endangerment) is the result of the
conduct. This dichotomy is necessary in order to maintain the
distinction drawn by § 45-2-101(33), MCA (1993), between offenses
which proscribe conduct (e.g., issuing bad checks) without regard
18
to result from offenses which proscribe conduct which creates a
specific result. For example, the crime of unlawful restraint, §
45-5-301, MCA, defines the offense as follows:
(1) A person commits the offense of unlawful
restraint if he knowingly or purposely and without lawful
authority restrains another so as to interfere
substantially with his liberty.
The conduct involved is the restraining of another individual. The
result is the substantial interference with liberty.
Justice Nelson apparently agrees that the defendant must be
aware of the risk factor. The difference is that he sees the risk
factor as being part and parcel of the conduct, rather than a
"result" of the conduct. Although this may not appear to be a
meaningful distinction, in the context of § 45-2-101(33), MCA
(1993), there is a substantive difference. By way of example,
assume that three men are standing in a field and each has a rifle.
Jones fires to the west where there is nothing but open field.
Smith fires to the south in the direction of a grove of trees.
Unbeknownst to Smith, there is a house in the grove of trees.
Johnson fires to the north where, in plain view, there is a cluster
of houses. Each of these men knowingly engaged in the same
conduct, i.e., shooting a rifle. However, the legal consequence of
any one man's conduct will vary depending upon his awareness.
Jones' conduct did not create a risk of harm. Smith's conduct did
create a risk of harm but he was unaware of that risk. Johnson's
conduct resulted in a risk of harm of which he should have been
aware.
Under the instruction given in the present case, a jury would
most likely find that each man was aware of his conduct (shooting
19
the rifle) The first definition of "knowingly" would therefore be
satisfied. Thus, Smith could be found guilty of criminal
endangerment even though he had no "knowledge" of the risk. Such
a result does not jibe with the definition of criminal
endangerment. Rather, in order to convict of criminal
endangerment, the State must prove that the defendant was aware
that it was highly probable that the result (the risk) would be
caused by the person's conduct.
In deliberating a charge of criminal endangerment, the jury
should not be given the option of definition #l: "A person acts
knowingly when he is aware of his conduct." This definition does
not bring the element of risk (endangerment) into the definition.
It does not state that risk is considered to be inherent in the
conduct nor does it state (like definition #3) that he must be
aware of the high probability of a result. Were the jury to
convict on the basis of definition #l, the State would be relieved
of its burden of proving that, despite being aware of the risks,
the defendant proceeded to engage in the conduct in question. In
the absence of such proof, negligent endangerment and criminal
endangerment become indistinguishable.
Section 45-2-101(33), MCA (1993), sets forth separate
definitions of knowingly. In determining which definition is
appropriate, the court must look to the requirements of the offense
charged. The court cannot simply instruct the jury, "Here are 3
definitions, take your pick." Criminal endangerment requires that
the conduct "create" a substantial risk. "Create" means to cause
to exist, give rise to or produce. THE AMERICAN HERITAGE DICTIONARY OF
20
THE ENGLISH LANGUAGE, 438 (3d ed. 1992). In other words, create means
to "result in." The conduct in question must "create" or "result
in" a risk. A jury instruction (definition #l) which focuses
solely on conduct rather than conduct and result, simply does not
apply to this offense.
Justice Karla M. Gray joins in the foregoing special concurrence.
21
Justice James C. Nelson dissenting.
I would hold that the District Court properly instructed the
jury as to the mental state element for the offense of criminal
endangerment, and, accordingly, I would affirm.
Section 45-5-207, MCA,l provides in pertinent part:
(1) A person who knowingly engages in conduct that
creates a substantial risk of death or serious bodily
injury to another commits the offense of criminal
endangerment. This conduct includes but is not limited
to knowingly placing in a tree, log, or any other wood
any steel, iron, ceramic, or other substance for the
purpose of damaging a saw or other wood harvesting,
processing, or manufacturing equipment.
In interpreting a statute, we must first look to the words
used and, if the language and meaning are plain, unambiguous,
direct and certain, we simply ascertain and declare what is in
terms or in substance contained therein, neither inserting what has
been omitted nor omitting what has been inserted. See § l-2-101,
MCA; State v. Gould (19951, 273 Mont.'207, 219, 902 P.2d 532, 540
(citing State v. Christensen (1994), 265 Mont. 374, 376, 877 P.2d
468, 469 and Clarke v. Massey (1995), 271 Mont. 412, 416, 897 P.2d
1085, 1088.)
While the majority holds that 5 45-5-207(l), MCA, defines the
mental state element of the offense of criminal endangerment, and,
hence, the State's burden of proof, in terms of the result of
conduct, I conclude that, to the contrary, the plain language of
the statute clearly and unambiguously requires that the State
'Unless otherwise stated, the 1993 version of the Montana Code
is cited herein as that was the version in effect when Lambert
committed the offenses with which he was charged.
22
simply prove that the defendant knowingly engaged in risk-creating
conduct, without the necessity of also proving his or her knowledge
of the probability that this conduct would cause a result.
Moreover, I believe that our prior case law mandates this
interpretation of the statute and does not at all support the
majority's view.
The operative language in the statute is "knowingly engages in
conduct that creates a substantial risk of death or serious bodily
injury to another. .'I The language chosen by the legislature
makes unlawful a particular form of conduct--i.e., that which
creates a substantial risk of death or serious bodily injury in
another. Whether this conduct actually causes the result--death
or serious bodily injury--is immaterial. The term "knowingly"
modifies the term "conduct" and specifies the mental state required
of the defendant during the time that he or she engages in this
conduct if it is to be chargeable as the offense of criminal
endangerment. It is the conduct which must create the risk, and it
is knowledge of or awareness of this conduct that makes engaging in
such conduct a criminal offense. So long as the defendant
"knowingly" engages in the conduct and so long as that conduct is
risk-creating, then, under the statute, it is irrelevant that the
defendant also "know" or be aware that death or serious bodily
injury will or will likely be caused by that conduct.
In short, there is nothing in the plain language of the
statute that supports the majority's interpretation. Rather, the
majority has effectively rearranged the wording of § 45-5-207(l),
23
MCA, and, hence, its statutory elements. To support the majority's
conclusion, the statute would have to provide: "A person who
engages in conduct knowing that it creates a substantial risk . .
.'I or "A person who knowingly causes a substantial risk . . . .I)
That is not how the statute is written, however. Rather, the
mental state element of criminal endangerment focuses on the
defendant's knowledge of his or her risk-creating conduct and not
on his or her knowledge of the result of such conduct.
Consequently, so long as the State demonstrated that Lambert's
conduct was risk-creating and so long as the State proved that he
"knowingly" engaged in this conduct then the State met its burden
of proof and Lambert was properly convicted of criminal
endangerment. In making this determination, it is first necessary
to focus on the conduct at issue.
In this case, the conduct in which Lambert engaged and which
created a substantial risk of death or serious bodily injury to
others was his driving while grossly intoxicated into the oncoming
lane of traffic while his driving privileges were revoked. Neither
causation nor result--his causing a serious automobile accident
resulting in personal injuries to other persons--are elements of
the offense of criminal endangerment; rather it is his risk-
creating conduct which the legislature proscribed.
For this risk-creating conduct to be chargeable as the offense
of criminal endangerment, however, the statute also requires that
it must be engaged in "knowingly.'P Generally, this mental state
can be proven in alternative ways under Montana's criminal code:
24
[Al person acts knowingly with respect to conduct or to
a circumstance described by a statute defining an offense
when the person is aware of the person's own conduct or
that the circumstance exists. A person acts knowingly
with respect to the result of conduct described by a
statute defining an offense when the person is aware that
it is highly probable that the result will be caused by
the person's conduct. When knowledge of the existence of
a particular fact is an element of an offense, knowledge
is established if a person is aware of a high probability
of its existence. [Emphasis added.1
Section 45-Z-101(33), MCA.
In this case, the trial court instructed the jury on this
mental state element as follows:
A person acts knowingly:
(1) when he is aware of his conduct or
(2) when he is aware under the circumstances that his
conduct constitutes a crime or
(3) when he is aware there exists the high probability
that his conduct will cause a specific result.
Court's Instruction No. 12 (emphasis added).
Lambert objects only to definition (11, apparently conceding
the applicability of definitions (2) and (3). The correctness of
that concession aside, it is clear that definition (1) from
Instruction No. 12 is included within the statutory definition of
§ 45-2-101(33), MCA, and based upon the statutory definition of
criminal endangerment it is also clear that definition (1) is the
mental state element applicable to this offense.
As pointed out above, the "conduct" proscribed by the statute
defining criminal endangerment is that which "creates a substantial
risk of death or serious bodily injuryto another." Section 45-5-
207(1), MCA. The State is required to prove that the defendant
25
engaged in this conduct "knowingly." It does that under 5 45-2-
101(33), MCA, by demonstrating that the defendant was "aware of his
conduct"--i.e., that the defendant was aware that he was conducting
himself in such a fashion so as to create a substantial risk of
death or serious bodily injury in another.
While a person's state of mind can rarely be proven by direct
evidence, the existence of a mental state may be inferred from the
acts of the accused and the facts and circumstances connected with
the offense, § 45-Z-103(3), MCA, and may be demonstrated
circumstantially. State v. Brogan (1993), 261 Mont. 79, 89, 862
P.2d 19, 25-26.
The evidence here was that Lambert drank to the point of being
heavily intoxicated and that, with his driving privileges revoked,
he, nonetheless, drove his vehicle from the bar parking lot into
the oncoming lane of traffic and collided with the Petersen
automobile. At the accident scene, to the police, emergency
responders and everyone else present, Lambert gave every appearance
and physical manifestation of being grossly intoxicated; he was
belligerent; he refused medical treatment; he was unconcerned about
the carnage he had caused; he acted inappropriately in view of the
seriousness of the situation; and there were full and empty bottles
of beer in his car along with a partially consumed bottle of
whiskey.
Lambert was obviously aware that he had been drinking--he
indicated that to the investigating officer, although he minimized
the amount he had drunk. Moreover, he was obviously aware that he
26
was driving--he first stated that he did not see the Peterson car
and then attempted to lay fault on Christine Petersen. When asked
what happened, Lambert said:
Pulled up, turned out, and they were right there.
I thought they were going the other way. They were there
just like right now, so either I didn't see them, or they
were going way too fast.
Under such circumstances any rational trier of fact could
have, and likely would have, concluded that Lambert was "aware of
his conduct"--i.e., that his conduct was such to create a
substantial risk of death or serious bodily injury to another--and
that he, therefore, acted "knowingly." It was irrelevant that
Lambert may not have intended to cause the accident or that he even
intended to put any one in general or in particular at risk. It
was sufficient that his conduct--driving blind drunk into oncoming
traffic--was risk-creating and that he was aware of what he was
doing when he engaged in that conduct.
This interpretation is fully supported by and consistent with
our prior case law which, for the most part, is virtually ignored
by the majority.
In State v. Clawson (1989), 239 Mont. 413, 781 P.2d 267, we
stated that "it is clear that the statute is created to punish
reckless or negligent behavior which has the inherent potential of
resulting in death or serious bodily injury to another person."
Clawson, 781 P.2d at 272 (emphasis added).
Moreover, in State v. Crisp (1991), 249 Mont. 199, 814 P.2d
981, we pointed out that the statute "does not require that the
victim suffer actual physical injury . . . [but rather1 [ilt
27
requires only that the defendant engage in conduct that creates a
substantial risk of death or serious bodily injury.11 Criso, 814
P.2d at 904. Unfortunately, in addressing the primary issue in
Crisp--the constitutionality of the criminal endangerment statute--
and with no real analysis of the ordering of language defining that
offense, we erroneously misstated which definition of "knowingly"
is applicable in discussing the mental state element. Unlike the
majority, I would take this opportunity to clarify Crisp rather
than perpetuate that error.
In State v. Willson (1991), 250 Mont. 241, 818 P.2d 1199, we
affirmed the defendant's conviction of criminal endangerment and
his designation as a dangerous offender where he drove through
downtown Billings at speeds up to 100 miles per hour while under
the influence of crank and cocaine, with resulting property damage
and personal injury to innocent people. Willson, 818 P.2d at 1203.
Likewise, in State v. Brown (19951, 270 Mont. 454, 893 P.2d
320, we rejected the notion that either criminal endangerment or
negligent endangerment (§ 45-5-208, MCA) required the State to
prove that any specifically identified individual was put at risk
by the defendant's conduct in firing several gunshots from a moving
vehicle in the direction of homes and vehicles along the highway.
Similarly, in State v. Smaage (1996), 276 Mont. 94, 915 P.2d
192, we affirmed a conviction of criminal endangerment where,
having been previously convicted of six DUIs (one of which resulted
28
in a death and negligent homicide convictionJ2 and with a blood
alcohol level of .250, the defendant. swerved his Buick through
early morning Helena traffic. We concluded that Smaage knowingly
engaged in conduct that created a substantial risk of death or
serious bodily injury to others. Smaaqe, 915 P.2d at 195.
Finally, and most recently, in State v. Bell (Mont. 1996), 923
P.2d 524, 53 St.Rep. 792, we upheld the defendant's conviction of
criminal endangerment where he entered his pickup and then
accelerated and sped away while a deputy sheriff had one hand on
Bell's arm and the other on the truck's open door and where the
defendant then drove at speeds of between 50 and 80 miles per hour
through Hardin streets with the authorities in pursuit
In w we cited the language of the statute itself, its
legislative history and our decisions in Smaaqe and Brown in
concluding that the defendant's knowing conduct creating a
substantial risk of death or serious bodily injury to another--
rather than the result off that conduct--was what violated the law.
Referring to the "tree spiking" language of § 45-5-207, MCA, and
likening that to driving 80 miles per hour down a city street, we
'By comparison, Smaage's record pales in the face of Lambert's
criminal history. According to the presentence investigation
report, Lambert, at 31 years of age, had been convicted of driving
under the influence 9 times in Montana and California; his license
had been suspended or revoked 16 times; he had been charged with
driving while his license was suspended or revoked some 20 times;
he had received 11 separate jail sentences that ranged from serving
two days in jail to serving 60 days in jail; he had been fined
between $30 and $1000 for his offenses; he had failed to complete
court-ordered after-care or Alcoholics Anonymous; and, while
released on bond in the instant case, he was again arrested for
DTJI, driving while his license was suspended or revoked and eluding
a peace officer.
29
stated:
In a prosecution for spiking trees, it is sufficient that
the State prove that the spike was "placed" for the
purpose of damaging a saw. It is not necessary that the
State prove that the tree was actually sawed or that an
identifiable person was endangered or injured by the
spike. Additionally, the criminal endangerment statute
does not require proof that the defendant intended to
injure another. Rather, it reauires that the State prove
that the defendant "knowinslv" encased in conduct and
that the conduct created a substantial risk of death or
serious bodilv iniurv to another. [Emphasis added.]
BellI 923 P.2d at 526.
-
We went on to cite Brown and its discussion of the legislative
history of criminal endangerment, noting that it was the
legislature's intent "to 'plug a hole in the criminal law' and
address conduct such as placing poison into aspirin in a store."
,Bell, 923 P.2d at 527 (emphasis added) (citing Brown, 893 P.2d at
322).
We concluded with the following:
Although Bell may have had no intent to injure
anyone, he knowingly drove down a city street at up to 80
mph. The fortuitous circumstance that he did not
actually harm anyone or have any near misses is
irrelevant. His driving down a city street at excessive
speed created a risk of death or serious bodily injury to
unnamed, unidentified people. .
. .
[Wle hold that where a person drives a car at speeds up
to 80 mph through occupied city streets, ignoring traffic
signs, in the middle of the morning, that person creates
a substantial risk of death or serious bodily injury to
another, thus committing the offense of criminal
endangerment. [Emphasis added.]
B-I
ell 923 P.2d at 528.
While the majority reads the criminal endangerment statute as
emphasizing result over conduct, our prior decisions, to the case,
30
support precisely the opposite conclusion. In each case we have
focused on conduct which creates a substantial risk as that which
is proscribed by a statute. The result of that conduct was wholly
irrelevant in our prior decisions. It was irrelevant that no
particular victim was identified as being put at risk by the
conduct at issue; it was irrelevant that no one was actually
injured by the conduct at issue. Rather, we focused entirely on
the risk-creating nature of each defendant's conduct.
Whether the conduct at issue is spiking a tree, poisoning a
bottle of aspirin, firing a gun in the general direction of houses
and vehicles, driving at an excessively high rate of speed through
occupied streets, or driving while grossly intoxicated, we have
uniformly and consistently focused on the perpetrator's risk-
creating conduct only and not on whether he was aware that his
conduct would cause any particular result.
Contrary to the majority's suggestion, criminal endangerment
does not arise in situations where one is simply "driving a car" or
"shooting a hunting rifle." Rather, it arises where the conduct at
issue involves driving a car, blind drunk, into oncoming traffic or
driving a car at a high speed through occupied city streets with
the police in hot pursuit or shooting a hunting rifle in the
direction of homes and vehicles. If the defendant is aware that he
is engaging in that sort of risk-creating conduct, then he is
acting knowingly and whether he is also aware of the result or
potential result of his conduct is irrelevant. When I fire my
rifle.into a moving train, or, while dead drunk, I drive my car
31
into oncoming traffic, all the time being aware of my conduct in
doing those activities, then I have acted knowingly. MY
protestations that I wasn't aware that anyone would be hurt or
killed is meaningless.
Having set forth what is, I believe, the correct analysis of
the applicable law, I next address Justice Leaphart's special
concurrence. First, the author criticizes the District Judge for
instructing the jury utilizing various definitions of "knowingly."
In point of fact, the judge instructed the jury in accordance with
the statute defining the mental state, only one portion of which
was objected to by Lambert; the defendant, himself, agreed with
two-thirds of the "smorgasbord."
Next Justice Leaphart tries to make sense out of the majority
holding by using an example involving issuing a bad check. He then
goes on to claim that the dissent contends that the mental state
element for issuing a bad check and for criminal endangerment are
similar. The concurring Justice is wrong on both counts. The
dissent did not and does not make that contention. Moreover, the
dissent strongly disagrees that Justice Leaphart has articulated
the correct mental state element for issuing a bad check in his
example.
A person simply aware that he is issuing or delivering a
check--i.e., a person who is "aware of his conduct" (subsection (1)
of the court's instruction) has not the mental state required for
commission of the criminal offense. Again, focusing on the actual
ordering of the language of the statute, the person must issue or
32
deliver the check "knowing that it will not be paid by the
depository." In other words he must not only be aware of his
conduct (issuing or delivering the check), but he must also be
aware that under the circumstances his conduct constitutes a crime
or will cause a specific result--i.e., that the check will not be
paid by the depository (subsections (2) and (3) of the court's
instruction).
Unlike the offense of criminal endangerment wherein
"knowingly" modifies the term conduct, in the offense of issuing a
bad check, "knowing" modifies the result. Contrary to the special
concurrence, the result proscribed by the statute is not that the
check was issued or delivered (that is simply conduct) or that
anyone is defrauded (that is not even'an element of the offense).
The prohibited result of issuing or delivering the check is that
the check will not be paid by the depository. If one issues or
delivers a check knowing that will be the result, then the offense
is committed.
The special concurrence then goes on to state that in Smaaqe,
the State had to prove that the defendant "was aware that there was
a high probability that his driving, under [the facts of the case],
created a specific result, that is, a substantial risk of death or
serious bodily injury." Justice Leaphart misquotes our opinion.
In Smaaqe, we referred to the mental state element of the offense
as follows:
The elements of criminal endangerment are the mental
state of "knowinglyl' and the act of engaging in conduct
that creates a substantial risk of death or serious
bodily injury to another. A person commits the offense
33
of criminal endangerment when he is aware that there is
a high probability that his conduct may cause a
substantial risk of death or serious bodily injury to
another. State v. Crisp (1991), 249 Mont. 199, 203, 814
P.2d 981, 983. [Emphasis added.]
Smaaqe, 915 P.2d at 195. We then went on to describe the trial
court ' s quoting with approval comments from Smaage's prior
negligent homicide sentencing regarding his extensive criminal
history involving DUI, and stated: .
The above comments by the District Court outline the
evidence in the record supporting a finding that Smaage
acted "knowingly." The presence of other people on the
streets down which Smaage weaved the Buick--a potential
lethal missile in the hands of a driver with a ,250 blood
alcohol content--supports a finding that Smaage engaged
in conduct creating a substantial risk of death or
serious bodily injury to another.
Smaaqe, 915 P.2d at 195.
At no point in Smaaqe did we hold or even imply that the
defendant had to be aware of a specific result of his conduct to be
convicted of criminal endangerment. To the contrary, the language
quoted above states that Smaage was properly convicted because he
"knowingly" engaged in risk-creating conduct.
While Justice Leaphart criticizes the dissent for "see[ingl
the risk factor as being part and parcel of the conduct, rather
than a 'result' of the conduct," that is precisely how the
Legislature has chosen to define the offense of criminal
endangerment--*conduct that creates a substantial risk of death or
serious bodily injury to another. . . ." The result of conduct is
not proscribed; rather, a specific sort of conduct itself is
prohibited. If the Legislature wanted to prohibit the result of
the conduct--e.g., engaging in conduct, knowing that it creates a
34
substantial risk, etc.,--the Legislature could have and would have
used different language than it did.
Finally, Justice Leaphart uses the example of the three
shooters. Jones fires in the direction where there is nothing but
an open field. He is aware that he is engaging in conduct that is
not causing a substantial risk of death or serious bodily injury to
another. Obviously, Jones is not criminally endangering anyone.
Smith fires in the direction of a grove of trees, wherein,
unbeknownst to him, there is located a house. Justice Leaphart
concludes that under subsection (1) of the court's instruction,
Smith could be charged with criminal endangerment since he was
aware of his conduct. I suggest that such a conclusion depends
necessarily on facts which are not set out in his example. If the
grove of trees is located in the Bob Marshall Wilderness, a jury
might well conclude that Smith's conduct was not risk-creating at
all. I.e., in the words of the statute, shooting into a grove of
trees in the Bob was not conduct that "create[dl a substantial risk
of death or serious bodily injury. . . .II Accordingly, being aware
that one was engaging in that conduct would not be criminally
chargeable because the conduct was not proscribed by the statute.
On the other hand, if the grove of trees was located in a
residential development adjacent to the field, then a jury might
well conclude that, under those circumstances, shooting into the
trees was risk-creating conduct. Being aware that one was engaging
in that conduct would be chargeable.
Johnson fires toward a cluster of houses in plain view.
35
Obviously Johnson is aware that his conduct is risk-creating. me
can be charged with and convicted of criminal endangerment.
Again the focus of criminal endangerment is on the conduct--
was it risk-creating or not? The State must prove that the conduct
was risk-creating--i.e., that the conduct creates a substantial
risk of death or serious bodily to another--and that the defendant
was aware he was engaging in that conduct. Under the language
chosen by the Legislature, the State does not have to prove that
the defendant was aware of any specific result.
Justice Leaphart's suggestion that proof of knowledge based on
subsection (1) of the court's instruction would render negligent
endangerment (§ 45-5-208, MCA) and criminal endangerment
indistinguishable is an issue not raised in this case. Moreover,
this suggestion is likely incorrect in any event, given that the
mental state of "negligently" is specifically defined in terms of
result instead of conduct. Section 45-2-101(42), MCA.
Furthermore, contrary to the special concurrence, the issue in
this case was not a claim of error in giving the jury the option of
picking and choosing definitions of the mental state element of the
crime .charged. The issue involves an instruction that gave the
jury three statutory definitions of the mental state element, two
of which the parties and the court agreed to and one of which was
objectionable to Lambert. The defendant had no problem with the
"smorgasbord;" he merely did not like one of the entrees.
Finally, in regard to Justice Trieweiler's special
concurrence, suffice it to say that I agree with neither his
36
analysis nor with the outcome of the factual scenarios he has
chosen to use as examples--none of which even remotely approximate
the facts presented to the jury in this case. I find it
interesting, however, that he concedes, as he must, that while "in
this case there was obviously evidence that Lambert was aware that
his conduct would create a substantial risk of harm," in the next
sentence he concludes that the jury might not have reached this
same "obvious" conclusion because of an instruction which allowed
them to determine Lambert's mental state if they were convinced
that he was aware that he was engaging in this very risk-creating
conduct. It is instructive, indeed, to learn that while judges are
capable of discerning the obvious, men and women who serve on our
trial juries, apparently, are not. Our collective agonizing over
the definition of mental states aside, I suspect that the next jury
will be in no better position to divine what was going on in
Lambert's drunken mind with the new instruction than the present
jury was with the instruction given by the court. Fortunately, the
next panel will likely still be able to discern the "obvious",
regardless.
In failing to properly analyze the mental state element of
criminal endangerment within the context of the actual language of
the statute and our prior case law, the majority has come to the
wrong conclusion. The trial court's instruction that Lambert
acted knowingly if he was "aware of his conduct" was correct.
I would affirm,
Chief Justice J.A. Turnage and Justice Charles E. Erdmann join in
the foregoing dissent.
Ystice
38
Chief Justice J. A. Turnage, dissenting:
I concur with the dissent of Justice James C. Nelson and
emphasize that Justice Nelson's dissent is absolutely correct as a
matter of law and in keeping with this Court's precedents.
On August 20, 1994, at approximately 1O:OO a.m. Christine
Peterson drove her Jeep Cherokee from her home in Darby, Montana,
to Missoula, Montana. Riding with her were her three school-aged
children and Mary Nelson, a seventh grader and friend of her
daughter. The purpose of the trip to Missoula was school shopping
for the children.
At approximately 5:30 p.m., Christine Peterson and her
passengers were traveling from Missoula on the return trip to their
home in Darby. For Christine Peterson and the children, traveling
south on Highway 93 at approximately 6:00 p.m. and at a point near
Stevensville, Montana, all hell broke loose.
Christine Peterson was driving safely in her southbound lane
of Highway 93 at a speed well within the speed limit when David B.
Lambert, defendant and appellant in this cause, drove his Monte
Carlo vehicle from the parking area of the Fort Owen Inn saloon,
onto Highway 93, crossing into the southbound lane occupied by the
Peterson vehicle and smashing head-on into her vehicle. Lambert's
actions caused a substantial risk of death and caused serious
bodily injury to Christine and her passengers.
At the scene Highway Patrol Officer Thomas Hamilton described
Lambert’s condition when he drove his vehicle head-on into the
Peterson vehicle in this manner:
. . . He was--I have always referred to it as pie faced.
He didn't seem to be in physical control of his muscles
39
and whatnot. He was slouched. His speech was slurred.
He was leaning. He wasn't standing erect. Just his
physical appearance struck me as someone under the
influence of alcohol.
Lambert's person had an odor of alcohol and he failed field
sobriety tests at the scene. When taken to the sheriff's office at
Hamilton, he refused to cooperate in any other sobriety tests and
also refused to give a breath test for alcohol content in his body.
At the scene, Officer Hamilton found in Lambert's vehicle a bottle
of Black Velvet whiskey approximately three-fourths full and both
empty and full bottles of beer.
After Lambert's trial for felony criminal endangerment, a jury
found him guilty of that charge.
At sentencing, Lambert's criminal history for driving motor
vehicles was reviewed by the District Court. This record is an eye
Popper.
For the period June 11, 1983, to November 28, 1994, Lambert's
criminal history record discloses that, at the time of sentencing
in this case, he had been convicted thirty-eight times of serious
driving offenses and that nine charges of serious driving offenses
were still pending.
Nine of the serious convictions were for driving under the
influence of alcohol or drunken driving. Three of the charges
still pending at the time of sentencing were for driving under the
influence of alcohol or drunken driving. The last such charge
still pending is alleged to have been committed while Lambert was
released on bail for the felony criminal endangerment charge and
the pending driving under the influence of alcohol charge of August
20, 1994.
40
Lambert's driver's license has also been suspended on two
occasions when he refused to take a chemical test for alcohol in
his body.
Between May 23, 1987, and August 20, 1994, Lambert had been
convicted seven times of driving a motor vehicle while his license
was suspended or revoked and, at the time of sentencing in this
case, he had pled guilty to driving a motor vehicle while his
license was suspended or revoked on August 20, 1994. Three other
charges against Lambert of driving while his license was suspended
or revoked apparently are still pending.
Mary Nelson, a seventh grader and one of the victims in the
crash, has said it all when she stated, "I feel that when David
gets out of jail, it's not a matter of if he kills someone, but
when."
The majority of this Court is reversing the felony criminal
endangerment conviction of Lambert essentially because of their
holding that the District Court misled the jury in giving court's
instruction no. 12. The majority's opinion is not correct as a
matter of law, as clearly pointed out by Justice Nelson's dissent.
Further, the majority opinion is not correct as a matter of common
sense.
Section 45-5-207, MCA, the statute under which Lambert was
charged and properly convicted of felony criminal endangerment,
insofar as pertinent to this case, provides:
(I) A person who knowingly engages in conduct that
creates a substantial risk of death or serious bodily
injury to another commits the offense of criminal
endangerment.
41
Instruction no. 12 given to the jury stated:
A person acts knowingly:
(1) when he is aware of his conduct or
(2) when is aware under the circumstances that his
conduct constitutes a crime or
(3) when he is aware there exists the high probability
that his conduct will cause a specific result.
The statute is clear, and the instruction is clear. The jury
simply could not have been misled. Lambert acted knowingly under
any of the three definitions in instruction no. 12. Lambert in all
probability has had more experience as a drunken driver than anyone
in Montana--he knew what he was doing and was aware of his conduct
on August 20, 1994, when he drove under the influence of alcohol.
The Bench and Bar are well aware that the rule of law, a basis
of stability in our society, is dependent upon public confidence in
our courts and justice system. In its legal arabesque, pirouette,
and struggle to reverse Lambert's conviction, the majority in this
case will, I believe, undermine public confidence in the court and
justice system of Montana. Decisions such as this leave no doubt
why MADD is angry.
I would affirm the District Court.
Justice Charles E. Erdmann concurs in the dissent of Chief &stice
Turnage.
Justice
42
State v. Lambert
Court: Montana Supreme Court
Date filed: 1996-12-16
Citations: 929 P.2d 846, 280 Mont. 231, 53 State Rptr. 1379
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