No. 89-315
INTHE SUPREME COURT OF THE STATE OF MONTANA
1989

STATE OF MONTANA, Plaintiff and Respondent,-vsHAL J. BUCKINGHAM,
Defendant and Appellant.

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## - ,- APPEAL FROM: DistrictCourtof the ThirteenthJudicial D$$@.ics _- In and for the Countyof Yellowstone, CJ o ;: TheHonorable DianeG. Barz, Judgepresiding61 -4 ;3 -4 COUNSEL OF RECORD:
For Appellant:
BradJ. Arndorfer, Billings, Montana
For Respondent:
Hon. MarcRacicot, AttorneyGeneral, Helena, Montana Paul D. Johnson, Asst. Atty. General, Helena HaroldHanser, CountyAttorney; CurtisBevolden, Deputy CountyAtty., Billings, Montana

Submittedon Briefs: Oct. 13, 1989
Decided: December 14, 1989
Filed:Justice Fred J. Fleber delivered the Opinion of the Court.

Defendant, Hal J. Buckingham, was charged in the District Court of the Thirteenth Judicial District,Yellowstone County, with felony assault purs~xantto 

### 5 45-5-202(2)(b)

### , MCA, for firing a shotqun at a car driven by Jay Popp. The jury found defendant guilty as charged. He was sentenced to fiveyears imprisonment in the Montana State Prison and fined $500.00. The prison sentence was suspended. Defendant appeals. We affirm. The issues before us on appeal are: 1. Was the State's motion for leave to file an information supportedby probable cause? 2. Was the defendant denied his right to a speedy trial? 3. Did the District Court err in denying defendant's motion in limine? 

### 4. Was the jury's verdict supported by substantial evidence? On the evening of February 29, 1988, Billings police officer Irvan Floth investigated a report of a firearm discharge at defendant's home. He examined a black, 12-gauge, Winchester Defender shotgun, with a pistol-style grip, an extended magazine and a serial number of L2037954. Floth testified that this particular type of gun was a defensive weapon capable of firing up to eight rounds without reloading. Defendant testified that he was "playing with the gun" when it accidentally fired, damaging a window. Because it

was an accidental discharge,no citationwas issued. Later that same evening, about 10:30 p.m., while driving to his house, the victim, Jay Popp, noticed a vehicle parked in his driveway with its lights shining on his house. As Popp approached, the other car suddenly pulled out and spedoff. Popp pursued the car in a high-speed chase. Suddenly thevehicle Popp was chasing turned 90 degrees inthe roadway and stopped. As Popp approached, someone from the other car shot athim. A piece of glass from thewindshield hithim in the neck. The shooting continued and inhis fear, Popp hid

on the floor of his car, making it difficult for Popp toget
a detailed description of the car or his assailant. He testified that he saw that the gun was "a large gun," "a shotgun" and thatthe car "looked like some kind of a Rabbit,

or small car like that," and a "dirty" "reddish color." He also testified that his assailantwas a male. Popp was able to escape the scene by driving his car while sitting on the floor. He drove back toward his home until the car stalled

as a result of damage done inthe shooting. He made hisway home and then reported the incident tothepolice. Upon examination, the sheriff's department determined that there was extensive damage tothe left front and front end of Popp's vehicle caused by shotgun pellets. Backtracking by fol~lowinga track of radiator fluid, the deputy was abletoverifyPopp's storyof what had happened. There were shotgun shells and a skidmark on the road where the assailant's car had come to a sudden stop, and glass and radiator fluidwhere Popp's carwas shot. A few days later, the sheriff's office responded to a call to pick up a shotgun which had been found in a ditch along theroad inthe area of the shooting. The shotgun bore the serial number L2037954, and was the same gun involved in the accidental discharge involving defendant. The gun was traced tothe storethat sold it. The store'sbooks revealed it had been sold todefendant. The Montana State Crime Lab then analyzed the shells found atthe scene of the shooting and established that the shells could only have been fired from defendant's shotgun.The investigation disclosed that defendant owned an orange Volkswagen Rabbit. InMarch, about a week after the shooting incident, that car had gone over the edge of the cliffsnear Billings. An information was filed against defendant on April 29, 1988, charging him with felony assault pursuant to S 45-5-202(2) (b), MCA. On May 25, 1988, defendant filed a Motion to Dismiss alleging that the information failed to give probable cause to charge defendant with the crime of felony assault. The District Court determined thatprobable

cause did existand denied themotion. Defendant was ordered to appear in court on October 6, 1988. Due tohis failuretoappear, a plea of not guiltywas entered by the court on hisbehalf. Trial datewas then set for December 5, 1988. On November 23, 1988, defendant moved todismiss for lack of speedy trialdue tothe length of time between arrest and the date set for the entry of a plea. After defendant personally appeared with his attorney on November 29, 1988, and entered a plea of not guilty, his motion was denied. A trialwas held as scheduled and the jury found defendant guilty as charged. He then made motions to dismiss, motion for new trial or modification of verdict to not guilty. Again, the District Court denied his motions, concluding that there was substantial evidence to support the jury's verdict. I Was the State's motion for leave tofilean information supported by probable cause? Defendant contends that because this case was based on circumstantial evidence, the District Court abused its discretion in not holding a preliminary hearing, and there were not sufficient facts tojustify filing the information. Hemaintains that he was not identified, his vehicle was not identified, and "only the fact that it was his gun used in the commission of the crime" connected him to the offense. He asserts that a preliminary hearing would have shown an unwarranted prosecution. Defendant filed amotion to dismiss

on thebasis that therewas not probable cause to support the information. Relying on 

### 5 46-11-201, MCA, the State maintains that the information was proper and there was no abuse of discretion.

The county attorney may apply directly to the district court for permission to file an information against a named defendant. The application must be by affidavit supported by such evidence as the judgemay require. ' 

### If it appears that there is probable cause to believe that an offense has been committed by the defendant, the judge shall grant leave to file the information,otherwise the application shallbe denied. Section 46-11-201(1),MCA. See Statev. Bradford (1984),210 Mont. 130, 139, 683P.2d 924, 928, 929. We agree. The State need not demonstrate aprima facie case in the information but need only show probable cause to believe an offense has been committed. InBradford, 683 P.2d at 929, we stated:
Similarly, evidence to establish probable cause need notbe as complete s the evidence necessary to establishguilt. (Citationomitted.) [TIhe determination whether amotion to file an information is supported by probable cause is left to the sound discretion of the trial court. Thus, the scope of review is one of detecting abuse in the exercise of thatdiscretion.
Defendantwas charged with felony assaultpursuant to S 45-5-202 (2)(b)

## , MCA. A person commits that offense if he purposely ox knowingly causes reasonable apprehension of

### serious bodily injury in another by use of a weapon. The facts set forth in the affidavit showed that the defendant accidentally discharged his shotgun in his home the night of the incident forwhich hewas charged; thepolice were called to investigateand the serialnumber ofhis gunwas reported;
an hour and a half later, Popp was shot at by amale person from another car, causing considerabledamage to Popp's car; Popp described the perpetrator's car as a dirty reddish-color,possibly aRabbit and defendant's car fit that description; the shotgun shells collected at the scene were determined by experts to have been fired from defendant's gun; and defendant's gunwas discovered in aditch near where the shooting took place. We affirm the District Court's holding that the State'smotion for leave to file an informationwas supportedby probable cause. I1 

### Was the defendant denied his right to a speedy trial? Defendant contends that he was denied his right to a 

### speedy trial, pointing out that 220 days elapsed from the date of his arrest to trial. He urges that a delay of 220 days gives rise to a rebuttable presumption ofprejudice. He maintains that the reason for the delay was due to an oversight by the State in failing to set an arraignment date. Finally he urges that he was prejudiced by the delay due to the "faded"memories of the witnesses and the victim at the time of trial. The State concedes that there was an oversight on its part regarding the setting of a date for arraignment. It maintains that therewere 58 

### days chargeable to the defendant which must be deducted from the totaldelay. Thus, it is the State's position that only 162

### of the 220 days are chargeable to the State,which does not constitute a sufficient length of 

### time to raise apresumption of prejudice to thedefendant.It also contends that even if the 162-day delay is presumptively prejudicial, consideration of the reason for thedelay and whether there was actual prejudice would excuse the delay. The reason for the delaywas considered and explained at lengthby the District Court. Both the Federal and State Constitutions guarantee defendant a right to a speedy trial. In determining the question ofprejudice pursuant toMont. Const., Art. 11,Sec. 24, this Court analyzes and weighs four factors. State v. Wombolt (1988), 753 P.2d 330, 45 St.Rep. 714. The four factorsare: 1. length of delay; 2. reason for the delay; 3. whether defendant asserted the right; and 4. whether defendantwasprejudiced. If the length of delay was not presumptively prejudicial, the other factors need not be examined. However, no single factor is determinative. See State v. Palmer (1986), 223 Mont. 25, 723 P.2d 956. As defendant asserts, there was a delay of 220 days in this case from the time of arrest to the time of trial. The length of this delay is enough to be presumptively prejudicial. Statev. Waters (1987),228 Mont. 490, 743 P.2d 617 (277 days); Palmer, 723 P.2d 956 (256 days); State v. Chavez (1984),213 Mont. 434, 691 P.2d 1365

(214days). The second factor of the Wombolt test is the reason for delay. The burden is on the State to show there was a reasonable excuse for delay in bringing defendant to trial. State v. Cutner (1984), 214 Mont. 189, 692 P.2d 466. The District Court found that the reason for the delay was of significant importance in this case and stated:

### Through an oversight,the Defendantdid not enter a plea in the case at bar. 

### A delay of 154 days occurred between the time of Defendant's arrest and the State's filing of a motion to compel entry of plea

# . . .. The reason for the delay between arrest and date set for the entry of aplea (October6,

### 1988), was an oversightby the State. The State and this Court assumed Defendant had entered a plea at the time the informationwas filed or shortly thereafter. According to the Montana Supreme Court in Statev. Waters,

# . . . "Theright to a speedy trial is designed to prevent oppressive tactics by the State." The 154day delay, in the case at bar,was due to an oversight by the State. There is no evidence that the State engaged in bad faith or oppressive tactics, and the Defendant does not contend as much in his brief supporting his motion to dismiss for lack of speedy trial.
We agree with the DistrictCourt that there is a lack of any evidence of oppressive tactics by the State in this case. The third factor to consider is whether the defendant asserted his right to a speedy trial. This was done when defendant filed his motion to dismissbefore the trial date. See Wombolt (1988),753 P.2d 330. The fourth factor to consider is whether defendant was prejudiced by the delay. The District Court concluded that the defendant was not prejudiced by the delay and that although the delay between defendant's arrest and the State's motion to compel entry ofplea was attributable to the State, defendant caused further delay himself by failing to appear and enter a plea. In Palmer, this Court identified the interests of a defendant whichmay be prejudiced by a delay. The interestsare:
(1) 

### to prevent oppressive pretrial incarceration; (2) 

### to minimize anxiety and concern of the accused; and (3) 

### to limit the possibility that the defensewSll he impaired. Barker, 407U.S. at 532.Palmer, 723 P.2d at 959. Oppressive pretrial incarceration

was not a factor in this case. Furthermore, the record is devoid of any evidence that defendant suffered from anxiety and does not support defendant's argument that his defense

was impaired. We affirmtheDistrict Court's conclusion that defendantwas not denied hisrighttoa speedy trial.

Did theDistrictCourt errindenying defendant's motion inlimine? Defendant contends the District Court erred by denying his motion in limine to exclude photographs of defendant's

car or any testimony regarding the carbecause Popp could not clearly identify or describe the car used in the crime. Defendant urges that Popp's own testimony proves that he was uncertain about what type of car was used in the crime or what it looked like. Popp testified thatthecarwas "dirty. And it was kind of reddish color. I couldn't tell, although, it was sovery dark." Defendant points out that Popp admitted seeing a Plymouth Horizon that he thought might be the vehicle involved and calledthepolice about it. The State maintains that the evidence was relevant pursuant toRule 402, M.R.Evid. It contends that thephotos togetherwith Popp's testimony clearlytended toplace defendant in the assailant's vehicle atthe time of the shooting, and was thereforerelevant. We agree. Rule 401, M.R.Evid., defines relevant evidence as: evidence having any tendency tomake the existence of any fact that isof consequence tothe determination of the actionmore probable or lessprobable than it would be without the evidence. Relevant evidence may include evidence bearing upon the credibility of a witness or hearsay declarant.

### InDerenbergerv. Lutey (19831,207

### Mont. 1, 9,674P.2d 485, 489,we stated the test is: 

# ".

. . whether an item of evidence will have any value, as determined by logic and experience, in proving the proposition for which it is offered. The standard used tomeasure this acceptable probative value is 'any tendency to make the existence of any fact 

# . . . more probable or less probable than it would be without the evidence.' This standard rejectsmore stringentoneswhich call for evidence to make the fact orproposition forwhich it is offered more probable than any other. It is meant to allowwide admissibilityof circumstantial evidence limited only by Rule 403 or other special relevancy rules in Article IV." (Citations omitted.) 

### Popp described the car as he remembered it and the photographs supported his testimony. It is for the trier of fact to decide whether it is the same car or not. We hold the District Court properly denied defendant's motion in limine.

Was the jury's verdict supported by substantial evidence? Defendant filed a motion for a new trial or a directed verdict pursuant to 

### 5 46-16-702, MCA. The District Court denied thismotion. Defendantcontends that the evidencewas wholly circumstantial and implies that to be enough to leave
a "reasonable doubt" in the minds of the jury. He therefore maintains thathe shouldhave been acquitted. The standard of review on issues of substantial evidence is that the conviction cannotbe overturned if evidence,when viewed in a light most favorable to the prosecution, would allow a rational trier of fact to find essential elements of the crime beyond a reasonable doubt. State v. Tome (19871, 228 Mont. 398, 742 P.2d 479. The decision is within the sound discretion of the trial court and will not beoverturned absent a clear abuse of discretion. State V. Howie (1987), 228 Mont. 497, 744 P.2d 156. Circumstantial evidence alone is sufficientto obtain a conviction. Itmust only be of such a "quality and quantity as to legally justify

a jury in determining guilt beyond a reasonable doubt," and all the facts and circumstances must be considered collectively. State

### v. Weaver (1981),195Mont. 481, 637 P.2d 23. We hold that the evidence would allow a rational trier of fact to find the defendant guilty of felony assault beyond a reasonabledoubt. Affirmed.



# &P-@+. Justices