No. 02-702
IN THE SUPREME COURT OF THE STATE OF MONTANA
2003 MT 363
STATE OF MONTANA,
Plaintiff and Respondent,
v.
GWEN McMAHON,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone, Cause No. DC 2000-919
The Honorable Susan P. Watters, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Gary Wilcox, Attorney at Law, Billings, Montana
For Respondent:
Honorable Mike McGrath, Montana Attorney General, Jennifer Anders,
Assistant Attorney General, Ryan M. Archer, Legal Intern, Helena, Montana;
Dennis Paxinos, Yellowstone County Attorney, Billings, Montana
Submitted on Briefs: May 22, 2003
Decided: December 18, 2003
Filed:
__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.
¶1 Gwen McMahon (McMahon) appeals the judgment of the Thirteenth Judicial District
Court, Yellowstone County, denying her motion for a directed verdict based on insufficiency
of the evidence.
¶2 We address the following issue on appeal and affirm: Did the District Court err in
denying McMahon’s motion for a directed verdict?
FACTUAL AND PROCEDURAL BACKGROUND
¶3 McMahon and R.J. McMahon (R.J.) were married for nearly ten years. However,
McMahon and R.J. began to experience marital difficulties, and McMahon moved out of
R.J.’s house permanently near the end of October 2000.
¶4 On October 31, 2000, around 1:30 a.m., McMahon entered the 1145 Club, which
R.J. owned. McMahon had previously worked at the 1145 Club, doing some book work
and various other activities.
¶5 Around 1:45 a.m., R.J. asked McMahon to leave. When McMahon refused to leave,
R.J. took her by the arm to escort her out. In so doing, a “yelling match” between McMahon
and R.J. ensued, and McMahon attempted to punch R.J.
¶6 As R.J. continued more forcefully to escort McMahon out of the bar, McMahon
pulled a gun from her purse with her finger on the trigger. In so doing, R.J. testified that he
hoped the safety was on and immediately “tried to make sure that she wouldn’t be able to get
it fired.”
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¶7 R.J. tackled McMahon to the floor, in an attempt to keep the gun flat, as he testified
that he thought McMahon was going to “probably shoot me, and who knows, maybe shoot
somebody else.” While R.J. was physically able to keep the gun flat on the floor, several
other patrons of the bar assisted R.J. in obtaining the gun from McMahon, who still had her
finger on the trigger.
¶8 Looking relatively calm after the incident, R.J. maintained throughout the trial that
he was “not really” in fear for his life, although he did realize that he could have been shot,
saying several times after the incident, “Well, thank God that’s over.”
¶9 McMahon was ultimately arrested and charged with assault with a weapon. She
pleaded not guilty, and her case proceeded to trial. At the close of the State of Montana’s
(the State) case, McMahon moved for a directed verdict based on insufficiency of the
evidence. The District Court denied this motion, and the jury ultimately convicted
McMahon of assault with a weapon. McMahon’s sentence was deferred for three years upon
several conditions.
¶10 McMahon now appeals the District Court’s denial of her motion for a directed verdict.
STANDARD OF REVIEW
¶11 We review a district court’s denial of a motion for directed verdict for an abuse of
discretion. State v. Landis, 2002 MT 45, ¶ 23, 308 Mont. 354, ¶ 23, 43 P.3d 298, ¶ 23. As
long as sufficient evidence exists to support the trier of fact in finding the elements of the
charged offense beyond a reasonable doubt, no abuse of discretion results. Landis, ¶ 23. We
review the evidence in a criminal trial in the light most favorable to the prosecution to
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determine whether the trier of fact could have found the essential elements of the offense
beyond a reasonable doubt. State v. Martin, 2001 MT 83, ¶ 17, 305 Mont. 123, ¶ 17, 23
P.3d 216, ¶ 17.
DISCUSSION
¶12 Did the District Court err in denying McMahon’s motion for a directed
verdict?
¶13 McMahon argues that the State produced insufficient evidence at trial to prove that
R.J. had a reasonable apprehension of serious bodily injury, as required under § 45-5-213(a),
MCA, since R.J. testified that he was not really afraid of McMahon during the attack. In
addition, McMahon maintains that R.J.’s testimony regarding his main concern that
McMahon’s gun would discharge in the bar and injure a patron of the bar, rather than
himself, also evidences that R.J. was not in fear of serious bodily injury.
¶14 The State counters that proof of R.J.’s fear of serious bodily injury is not required to
prove reasonable apprehension under § 45-5-213(1), MCA. We agree.
¶15 Section 45-5-213(1)(b), MCA, states that “[a] person commits the offense of assault
with a weapon if the person purposely or knowingly causes . . . reasonable apprehension of
serious bodily injury in another by use of a weapon or what reasonably appears to be a
weapon.”
¶16 Serious bodily injury means bodily injury that
(i) creates a substantial risk of death;
(ii) causes serious permanent disfigurement or protracted loss or impairment
of the function or process of a bodily member or organ; or
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(iii) at the time of injury, can reasonably be expected to result in serious
permanent disfigurement or protracted loss or impairment of the function or
process of a bodily member or organ.
Section 45-2-101(65)(a), MCA.
¶17 We held in State v. LaMere (1980), 190 Mont. 332, 621 P.2d 462, that the element
of fear is not required to prove reasonable apprehension, nor is “delayed apprehension”
required, as McMahon asserts. Indeed, we noted that “as in civil assault, ‘apprehension is
not the same thing as fear.’” LaMere, 190 Mont. at 336, 621 P.2d at 464 (quoting W.
Prosser, Law of Torts § 10 (4th ed. 1971)).
¶18 The issue in LaMere concerned whether a boy was in reasonable apprehension when
the boy stated that he was not afraid at the time the defendant held a large knife to the boy’s
stomach and threatened that he would kill him, and instead stated that only after he left the
situation did the boy realize that he could have been killed. LaMere, 190 Mont. at 334, 336,
621 P.2d at 463-64.
¶19 In holding that fear was not required to prove reasonable apprehension, we recognized
that
a victim may be put in a position . . . of being so startled, or shocked, or afraid,
that his reaction is a delayed one. The “reasonable apprehension” may be a
response that the victim is not instantly aware of, but his actions may clearly
show that he apprehends the reality of the attack.
LaMere, 190 Mont. at 336, 621 P.2d at 464.
¶20 In addition, we noted that the legislative aim of assault statutes was to prevent
breaches of the peace in situations where a victim may be provoked into breaching the peace
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when placed in a position knowing that self defense is required. LaMere, 190 Mont. at 335,
621 P.2d at 464.
¶21 We also held in State v. Hagberg (1996), 277 Mont. 33, 920 P.2d 86, that in looking
at the totality of the circumstances--i.e., the officer’s testimony regarding his apprehension
and the defendant’s belligerence, alcohol odor, and glazed look--sufficient evidence existed
to prove that the officer was in reasonable apprehension. Hagberg, 277 Mont. at 41, 920
P.2d at 90.
¶22 Here, after realizing that McMahon had pulled a gun from her purse, R.J. immediately
tried to make sure that she did not fire it, as he thought she was probably going to shoot him
or somebody else. R.J. and several other patrons of the bar physically struggled with
McMahon in attempting to keep the gun flat and in obtaining the gun from McMahon. While
R.J. maintained that he was not in fear for his life, he did testify that he later realized, much
as the boy in LaMere did, that he could have been shot. In totality, this reaction, coupled
with R.J.’s struggle with McMahon in obtaining the gun from her, and his belief that
McMahon would shoot him or someone else, sufficiently establishes that he reasonably
apprehended serious bodily injury. The fact that he testified that he did not fear for his life
is inconsequential under our holding in LaMere and the legislative aim of assault statutes in
general.
¶23 Therefore, we hold that the District Court did not err in denying McMahon’s motion
for a directed verdict.
¶24 Affirmed.
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/S/ JAMES C. NELSON
We Concur:
/S/ JIM REGNIER
/S/ PATRICIA COTTER
/S/ JIM RICE
/S/ JOHN WARNER
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