No. 05-345 IN THE SUPREME COURT OF THE STATE OF MONTANA 2006 MT 348

STATE OF MONTANA, Plaintiff and Respondent,

v. STEVEN LEO MATZ, Defendant and Appellant.

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

COUNSEL OF RECORD: For Appellant: Brad L. Arndorfer, Arndorfer Law Firm, P. C., Billings, Montana For Respondent: Honorable Mike McGrath, Attorn ey General; Joslyn M. Hunt, Assistant Attorney Ge neral, Helena, Montana Dennis Paxinos, County Attorney; Ed E. Zink, Deputy County Attorney, Missoula, Montana
Submitted on Briefs: May 24, 2006 Decided: December 27, 2006 Filed:

__________________________________________ Clerk2 Justice Jim Rice delivered the Opinion of the Court. ¶1 Steven Leo Matz (Matz) appeals from th e verdict and judgment entered by the Thirteenth Judicial District Court, Yellows tone County, finding him guilty of felony aggravated assault and enhancin g his sentence for that offe nse with an additional five years pursuant to § 46-18-221, MCA, based upon the finding that he used a weapon in the commission of the offense. We affirm. ¶2 We consider the following issues on appeal: ¶3 (1) Did the District Court err in denying Matz’s proposed jury instruction which would have required the State to prove that Matz did not act with justifiable use of force? ¶4 (2) Did Matz’s sentence enhancement fo r using a weapon violate double jeopardy where his underlying conviction was for aggravated assault? ¶5 (3) Did the District Court err by giving a jury instruction that did not distinguish which form of serious bodily injury was being alleged? ¶6 (4) Did the District Court abuse its discretion by excluding evidence that the alleged victim had marijuana and a marijuan a pipe in his pocket at the time of the altercation? FACTUAL AND PROCED URAL BACKGROUND ¶7 Steve Andersen (Andersen) and his wife , Amber Andersen (Amber), managed the Village Inn Pizza Parlor (Village Inn) in B illings, Montana. On the night of May 30, 2004, at approximately ten o’ clock in the evening, while taking a break from cleaning, Andersen noticed an individual on a bicycl e cut through the parking lot, which was situated behind the restaurant. Knowing th at there was only one way out of the parkinglot, Andersen, joined by Am ber, waited for the individual to ride back out. The individual, who turned out to be Matz, was riding his bicycle for exercise and in search of neighborhood dumpsters. Ma tz frequented dumpsters behind neighborhood pizza restaurants to recover discarded pizza, which he fed to his neighbor’s dogs. ¶8 Andersen and Amber, after waiting a minute or two, walked out to the parking lot and found Matz astride his bicycle while hold ing up the lid of the dumpster and perusing its contents. Andersen told Matz that he was on private property, to get out of the dumpster, and threatened to call the police. Matz indicated that he had a right to be there because the dumpster was public domain. Andersen issued another warning for Matz to leave the property and requested Amber to ca ll the police, but the testimony about what occurred thereafter was conflicted. ¶9 A business videotape disclosed the parties’ initial meeting but did not capture the following altercation between Andersen and Ma tz. Matz testified that Andersen was belligerent and, as Matz rode his bicycle past Andersen to depart the premises, Andersen attacked him and knocked him off his bicycle and onto his back. Being susceptible to a shoulder injury and afraid he would be kick ed in his shoulder, Matz testified that he pulled a gun he was carrying to protect himself, explaining that he is a licensed firearm dealer and that he carried the gun to defe nd himself while riding his bicycle in the evening. In contrast, Andersen testified th at, after telling Amber to call the police, Matz began taunting Andersen while Andersen impl ored Matz to leave. Matz responded by riding his bicycle over to within some two an d a half feet of Andersen, pulling the gun from his pocket, and asking, “What do you think of this, tough guy?” 3¶10 Seeing a gun pointed at his h ead, Andersen grabbed it with both of his hands in an effort to take it away. Struggling, both me n fell to the ground. Matz pushed the gun barrel into Andersen’s side, while Andersen tried to point it away from his body. During the struggle Matz fired the gu n twice, with one shot penetr ating Andersen’s stomach and the other grazing his arm, but this did not end the battle. Hearing the gunshots, Amber ran outside and, seeing Matz on top of her hus band, jumped onto Matz’s back and began choking him in an effort to remove him from Andersen. When Andersen yelled for Amber to grab the gun, Amber reached arou nd the back of Matz and grabbed the four hands that were already clutchi ng the gun, and all three of th e parties struggled to control the gun. When, during the mêlée, Amber noticed that the gun had become pointed toward Matz beneath her, and thinking th at her husband may have been mortally wounded, she unsuccessfully attempted to discharge the fi rearm into Matz. Quickly responding police officers found the parties thus engaged and broke up the struggle. ¶11 The State filed its information charging Matz with aggravated assault. A jury trial was held which ended with Matz moving for and being granted a mistrial. A second trial in January 2005 resulted in a conviction. Pr ior to sentencing, Matz filed a “motion to strike and dismiss claim for weapon enhancem ent penalty,” seeking to deny the State’s request for a sentence enhancement, which the St ate had first asserted in the information. The District Court denied this motion, and Matz was senten ced to fifteen years in the Montana State Prison and an additional five years pursuant to § 46-18-221, MCA, because he was found to have used a weap on while engaged in the commission of the underlying offense of aggravated assault. Matz appeals.
4DISCUSSION ¶12 (1) Did the District Court err in denyi ng Matz’s proposed jury instruction which would have required the State to prove that Matz did not act with justifiable use of force? ¶13 “We review claims of instructional error in a criminal case to determine whether the jury instructions, as a whole, fully and fair ly instruct the jury on the law applicable to the case.” State v. DuBray , 2003 MT 255, ¶ 88, 317 Mont. 377, ¶ 88, 77 P.3d 247, ¶ 88 (citing State v. Long , 274 Mont. 228, 232, 907 P.2d 945, 947 (1995)). “Since a trial court has broad discretion when instructing a jury, re versible error will occu r only if the jury instructions prejudicially affect th e defendant’s substantial rights.” State v. Maloney , 2003 MT 288, ¶ 14, 318 Mont. 66 , ¶ 14, 78 P.3d 1214, ¶ 14 (quoting State v. Strauss, 2003 MT 195, ¶ 47, 317 Mont. 1, ¶ 47, 74 P.3d 1052, ¶ 47). ¶14 Matz’s proposed jury instruction stated: “You are instructed [that] the Defendant, Steven Leo Matz, is not required to prove sel f-defense or justification. The State is required to prove beyond a reasonable doubt th at justification or self-defense does not exist in this case.” Matz first argues that the District Court erred when it refused this proposed instruction because requiring a defe ndant to bear the burden of proof is unconstitutional. He argues it is only logical that when there are issues of self-defense, as here, the State must be required to prove beyond a reasonable doubt that justification or self-defense does not exist. Matz assert s this Court has not expressly overturned State v. Azure , 181 Mont. 47, 591 P.2d 1125 (1979), wher ein the Court held that a defendant’s proffered instruction that “the State must prove the absence of justification [for using force in self-defense] beyond a reasonable doubt” was a corre ct statement of the law.
5Azure , 181 Mont. at 54, 591 P.2d at 1130. Therefore, he argues, it is still proper to instruct a jury that the pros ecution bears the burden of provi ng lack of justification for self-defense beyond a reasonable doub t when this issue is raised. ¶15 The State argues that while Matz may be co rrect that this Court has not expressly overruled its decision in Azure , its applicability has certainl y been called into question and cannot stand beside more recent cases, such as State v. Daniels , 210 Mont. 1, 682 P.2d 173 (1984), wherein this Court noted the many cases challenging self-defense or justifiable use of force instru ctions it had decided. The Daniels Court then stated: From these cases the true rule can be drawn: The State has the burden of proving beyond a reasonable doubt every element of the offense charged, or any lesser-included crime within such ch arge; the defendant if he raises an affirmative defense has the burden of producing sufficient evidence on the issue to raise a reasonable doubt of his guilt . . . . Daniels , 210 Mont. at 16, 682 P.2d at 181. The State notes that Matz raised justifiable use of force as an affirmative defense to the charge and that, therefore, he bore the burden of producing sufficient evidence to establish the defense. ¶16 We agree with the State that Azure ’s statement, quoted above, approving a jury instruction which placed th e burden upon the State to establish the absence of justification for use of force, is no longer good law. Indeed, we have previously explained that this was the effect of our holding in Daniels. In State ex rel. Kuntz v. Thirteenth Jud. Dist., 2000 MT 22, ¶ 42, 298 Mont. 14 6, ¶ 42, 995 P.2d 951, ¶ 42, we noted that “[a]lthough not expressly holding so, Daniels overturned a line of case law, notably State v. Graves (1981), 191 Mont. 81, 622 P.2d 203, and State v. Azure (1979), 181 Mont. 47, 591 P.2d 1125, that had previously held that jury instructions stating that
6the State had the burden to prove an absence of justific ation beyond a re asonable doubt were proper.” We also cited State v. Gratzer , 209 Mont. 308, 318, 682 P.2d 141 (1984), for this proposition. ¶17 Matz raised justifiable use of force as his affirmative defens e to the shooting. Therefore, it was properly and constitutiona lly Matz’s burden at trial to produce sufficient evidence to raise a r easonable doubt of his guilt based on his justifiable use of force defense, and the State was not obligated to prove that Matz di d not act with such justification. Daniels , 210 Mont. at 16, 682 P.2d at 1 81. The District Court properly instructed the jury to that effect and appropriately denied Matz’s proffered instruction. ¶18 (2) Did Matz’s sentence enhancement for using a weapon violate double jeopardy where his underlying conviction was for aggravated assault? ¶19 This Court reviews a district court’s impos ition of sentence for legality. When the issue concerns “whether the district court vi olated the defendant’s constitutional rights at sentencing, the question is a ma tter of law which we review de novo to determine whether the district court’s interp retation of the law is correct.” State v. Mason , 2003 MT 371, ¶ 19, 319 Mont. 117, ¶ 19, 82 P.3d 903, ¶ 19 (citing State v. Bedwell, 1999 MT 206, ¶ 4, 295 Mont. 476, ¶ 4, 985 P.2d 150, ¶ 4; State v. Guillaume, 1999 MT 29, ¶ 7, 293 Mont. 224, ¶ 7, 97 5 P.2d 312, ¶ 7). ¶20 Matz argues that his sentence of fiftee n years for aggravated assault and the sentence enhancement of five years for use of a weapon during the commission of the aggravated assault is in vi olation of the prohibition against double jeopardy found at Article II, Section 25, of the Mont ana Constitution as interpreted in State v. Guillaume,
71999 MT 29, 293 Mont. 224, 9 75 P.2d 312. Matz challenges the District Court’s reliance on the statement made in State v. Whitehorn , 2002 MT 54, ¶ 45, 3 09 Mont. 63, ¶ 45, 50 P.3d 121, ¶ 45, that the only two offenses where the use of a weapon enhancement may not be used are assault with a weapon and aggravated burgla ry. Matz argues it is illogical to claim that there is a distinction between the charge of assault with a weapon and the charge at issue here, aggravated assault, wh en the aggravated assault has occurred with the use of a weapon, because, as a practical matter, very few cases of aggravated assault are without the use of a weapon. ¶21 The State argues that the use of a weapon is not an element of aggravated assault as charged against Matz, thus allowing Matz ’s sentence to be enhanced for using a weapon. The State contends that applica tion of the weapon enhancement statute to a conviction in which the underlying offense do es not require proof of use of a weapon does not constitute a double jeopardy viola tion, citing State v. Keith, 2000 MT 23, ¶ 39, 298 Mont. 165, ¶ 39, 995 P.2d 966, ¶ 39, wh erein we approved a weapon enhancement upon a sentence for criminal endangerment. The State maintains th at an offense which does not include use of a weapon as an elem ent, but which nonetheless occurred by use of a weapon, is fundamentally different than an offense that actually includes the use of a weapon as an element, such as assault with a weapon and aggr avated burglary. The State notes that Matz concedes that not all aggravat ed assaults occur with use of a weapon, and therefore this Court’s statement in Whitehorn , that the offenses of assault with a weapon and aggravated burglary were the only two offe nses which could not be enhanced for use of a weapon, is correct. 8¶22 Montana’s weapon enhancement statute, § 46-18-221(1), MCA, provides that: a person who has been found guilty of any of fense, other than an offense in which the use of a weapon is an element of the offense, and who, while engaged in the commission of the offense, knowingly disp layed, brandished, or otherwise used a firearm, destructive device, as defined in 45-8-332(1), or ot her dangerous weapon shall, in addition to the punishment provided for the commission of the underlying offense, be sentenced to a term of imprisonment in the state prison of not less than 2 years or more than 10 years, except as provided in 46-18-222. ¶23 This Court ruled in Guillaume, ¶ 16, that application of the weapon enhancement to an offense that itself requires proof of the use of a weapon violates Montana’s constitutional protection against double jeopa rdy. A double jeopa rdy analysis under Guillaume is based upon the statutory definition of the underlying offense, i.e., whether one of the elements of the offense re quires proof of the use of a weapon. See Keith , ¶ 39. ¶24 Matz was charged of aggravated a ssault under § 45-5-202(1), MCA, which requires that an individual “purposely or knowingly causes serious bodily injury to another.” Pursuant thereto, the jury was dire cted in Instruction No. 13 that: “[t]o convict the Defendant of aggravated assault, the State must prove the following elements: (1) [t]hat the Defendant caused serious bodily in jury to Steve Andersen; and (2) [t]hat the Defendant acted purposely and knowingly.” Then, the jury was further instructed, in Instruction No. 29, regarding th e need to enter a separate fi nding regarding Matz’s use of
a weapon: [t]he State has alleged that in committing the offense of Aggravated Assault, the Defendant used a firear m or dangerous weapon. Whether the Defendant used a firearm or danger ous weapon in the commission of the offense for which the Defendant is bei ng tried must be proved by the State by proof beyond a reasonable doubt. This is a separate finding by you, independent of the issue of whether the Defendant is guilty of the offense of Aggravated Assault. You need not find the Defe ndant used a firearm or

9dangerous weapon unless you first de termine beyond a reasonable doubt that the Defendant committed the offense of Aggravated Assault. [Emphasis added.] ¶25 Matz’s use of a weapon was not an element of the offense of aggravated assault. The jury was instructed to make an additional, “separat e finding,” which was used by the District Court to impose the sentence enhanc ement. Thus, it cannot be said that Matz received multiple punishments for the same act or crime. ¶26 According to the analysis required under our case law, it is clea r that the District Court did not err in enhancin g Matz’s sentence for use of a weapon where he was found guilty of aggravated assault under § 45-5-202, MCA, and wa s separately found by the jury to have used a weapon in the commission of that offense. Accordingly, the application of the weapon enhancement statute to Matz’s sentence fo r aggravated assault did not subject Matz to a punishment in vi olation of the double jeopardy provision of Article II, Section 25, of th e Montana Constitution. ¶27 (3) Did the District Court err by giving a jury instruction that did not distinguish which form of serious bodily injury was being alleged? ¶28 We review a jury instruction in a criminal case to see whether the instruction fully and fairly instructed the jury on the law applicable to the case. DuBray , ¶ 88 (citing Long, 274 Mont. at 232, 907 P.2d at 947). “Since a trial court has broad discretion when instructing a jury, reversible error will occur only if the jury instructions prejudicially affect the defendant’s substantial rights.” Maloney , ¶ 14 (quoting Strauss, ¶ 47). ¶29 Matz offers a very brief argument that his constitutional right to an unanimous verdict was violated by the instructions given to the jury, citing State v. Weldy , 273 Mont. 1068, 902 P.2d 1 (1995). In Weldy , the defendant was charged with felony assault under two alternative statutory subsections. The a lternatives were not alternative means of satisfying one common element, but, ra ther, set forth separate offenses. Weldy , 273 Mont. at 78, 902 P.2d at 7. Because the verdict form in Weldy did not ask the jury to specify which type of felony assault served as the basi s for its finding, this Court concluded that the de fendant’s constitutional right to a unanimous verdict was not protected by the jury instructi ons or the jury verdict form. Weldy , 273 Mont. at 78, 902 P.2d at 7. Matz argues that because the jury instruction offered in this case defining serious bodily injury did not distinguish whic h form of serious bodily injury was being alleged, it similarly violated his right to a unanimous verdict. ¶30 The State responds that, while there are alternative ways of defining serious bodily injury under § 45-2 -101(66), MCA—namely, risk of death, serious permanent disfigurement, or an expected result of se rious permanent disfigurement—these alternate definitions do not represent separa te elements or offenses. Thus, the State contends that a specific unanimity instruction was not necessa ry because the jurors had already been instructed to find a unanimous verdict as to the charge of aggravated assault, which included the alternative means of satisfying the single elemen t of serious bodily injury. We agree. ¶31 “[L]egislatures frequently enumerate al ternative means of committing a crime without intending to define separate el ements of separate crimes . . . .” Weldy , 273 Mont. at 77, 902 P.2d at 6 (quoting Schad v. Arizona, 501 U.S. 624, 636, 111 S. Ct. 2491, 2499). In Kills on Top v. State, 273 Mont. 32, 901 P.2d 1368 (1995), we cited Schad for
11this proposition and held that the alterna tives set forth in the aggravated kidnapping statute represented different means of committi ng the same offense, rather than separate offenses. Kills on Top , 273 Mont. at 56, 901 P.2d at 1384. ¶32 This case requires the same outcome because the alternative definitions set forth in § 45-2-101(66), MCA, merely describe differe nt ways or means of seriously injuring another while committing the offe nse, and do not define diffe rent offenses or different elements of one offense. Matz was charged with on ly one criminal offe nse, with one set of elements thereof. Therefore, the Dist rict Court did not a buse its discretion in instructing the jury w ith regard to unanimity, and Matz ’s constitutional rights were not implicated thereby. ¶33 (4) Did the District Court abuse its di scretion by excluding evidence that the alleged victim had marijuana and a marijuana pipe in his pocket at the time of the altercation? ¶34 “A district court has broad discreti on in determining the relevance and admissibility of evidence.” State v. Hicks , 2006 MT 71, ¶ 19, 331 Mont. 471, ¶ 19, 133 P.3d 206, ¶ 19 (citing State v. Flowers, 2004 MT 37, ¶ 19, 320 M ont. 49, ¶ 19, 86 P.3d 3, ¶ 19). Therefore, this Court will not overturn a district court’s evid entiary ruling absent a showing of abuse of discretion. Hicks, ¶ 19. “A district court abuses its discretion when it acts arbitrarily without employment of c onscientious judgment or exceeds the bounds of reason, resulting in substantial injustice.” State v. Riggs , 2005 MT 124, ¶ 18, 327 Mont. 196, ¶ 18, 113 P.3d 281, ¶ 18 (citing State v. Weldele, 2003 MT 117, ¶ 72, 315 Mont. 452, ¶ 72, 69 P.3d 1162, ¶ 72).
12¶35 When Andersen was taken to the hospital after the altercation, a blood test was conducted that indicated he had a blood al cohol content of .028. The defense was allowed to cross-examine Anders en about his drinking that evening, but when the defense sought to introduce the mariju ana and marijuana pipe found on Andersen that night, the State objected on relevance grounds. The Dist rict Court, citing this Court’s holdings in State v. Gleim, 17 Mont. 17, 41 P. 998 (1895), and State v. Sorenson, 190 Mont. 155, 619 P.2d 1185 (1980), excluded the evidence, be cause Matz had not demonstrated that Andersen was under the influence of mar ijuana at the time of the incident. ¶36 Matz initially argues that this evidence was highly relevant to his self-defense theory, because the marijuan a may have suggested why Andersen acted in the manner Matz had alleged—that is, attacking Matz an d knocking him off his bicycle. The State responds that such a connection between the marijuana and Andersen’s behavior, without more, is entirely speculative, but, additionally , that Matz did not o ffer the evidence for this purpose at trial. Matz’s relevance argument having not be en made at trial, we need not consider it further. ¶37 At trial, Matz argued that the only thing this evidence does is prove that at the time these incidents happened, these were in hi s pocket. I have no proof beyond that, intend to offer it as that. But that, those are fa cts that are there. I think we are entitled to present the scene of the cr ime, what happene d, who had what. Thus, Matz essentially inte nded to impeach Andersen’s credibility by reason of Andersen’s possession of the marijuana. Matz argues that this was also a proper purpose

13pursuant to M. R. Evid. 404(a)(2), which pe rmits introduction of character evidence concerning a victim. ¶38 M. R. Evid. 404(a)(2) provid es that evidence “of a per tinent trait of character of the victim of the crime” may by offered by an accused. However, Matz did not offer evidence of any “pertinent tra it” about Andersen, only th e marijuana he possessed. About such evidence, this Court held in Gleim, and reaffirmed in Sorenson, “that the mere use of narcotics is not admissible to impeach witness cred ibility ‘unless it is proposed to show that the witness was under the influence of the dr ugs at the time the events happened about which she testified.’” Sorenson , 190 Mont. at 166, 619 P.2d at 1191 (citing Gleim , 17 Mont. at 31, 41 P. at 1001). Here, Matz laid no foundation tending to show that Andersen was under the influence of drugs at the time of the events in question. Given Matz’s failu re to lay that foundation, ex clusion of the evidence for the reason offered was not an abuse of discretion. ¶39 Affirmed.
/S/ JIM RICE

We concur:

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

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