No. 89-315 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsHAL J. BUCKINGHAM, 

Defendant and Appellant. 

- - ,- 

APPEAL FROM: District Court of the Thirteenth Judicial D$$@.ics _- 

In and for the County of Yellowstone, CJ o ;: 

The Honorable Diane G. Barz, Judge presiding61 -4 

;3 

-4 

COUNSEL OF RECORD: 

For Appellant: 

Brad J. Arndorfer, Billings, Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General, Helena, Montana 

Paul D. Johnson, Asst. Atty. General, Helena 

Harold Hanser, County Attorney; Curtis Bevolden, Deputy 

County Atty., Billings, Montana 

Submitted on 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~xant to 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 

five years 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 supported by 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 citation was 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 sped 
off. Popp pursued the car in a high-speed chase. Suddenly 

the vehicle Popp was chasing turned 90 degrees in the roadway 

and stopped. As Popp approached, someone from the other car 

shot at him. A piece of glass from the windshield hit him in 

the neck. The shooting continued and in his fear, Popp hid 

on the floor of his car, making it difficult for Popp to get 

a detailed description of the car or his assailant. He 

testified that he saw that the gun was "a large gun," "a 

shotgun" and that the car "looked like some kind of a Rabbit, 

or small car like that," and a "dirty" "reddish color." He 

also testified that his assailant was 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 in the shooting. He made his way 

home and then reported the incident to the police. 

Upon examination, the sheriff's department determined 

that there was extensive damage to the left front and front 

end of Popp's vehicle caused by shotgun pellets. Backtracking by fol~lowing a track of radiator fluid, the deputy was 

able to verify Popp's story of what had happened. There were 

shotgun shells and a skid mark on the road where the assailant's car had come to a sudden stop, and glass and radiator 

fluid where Popp's car was 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 the road in the 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 to the store that sold it. The store's books revealed 

it had been sold to defendant. The Montana State Crime Lab 

then analyzed the shells found at the 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. In March, about a week after the 

shooting incident, that car had gone over the edge of the 

cliffs near 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 that probable 

cause did exist and denied the motion. 

Defendant was ordered to appear in court on October 6, 

1988. Due to his failure to appear, a plea of not guilty was 

entered by the court on his behalf. Trial date was then set 

for December 5, 1988. On November 23, 1988, defendant moved 

to dismiss for lack of speedy trial due to the 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 trial was 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 to file an 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 to justify filing the information. He 
maintains 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 a motion to dismiss 

on the basis that there was 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 judge may 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 shall be denied. 

Section 46-11-201(1), MCA. See State v. Bradford (1984), 210 

Mont. 130, 139, 683 P.2d 924, 928, 929. We agree. 

The State need not demonstrate a prima facie case in the 

information but need only show probable cause to believe an 

offense has been committed. In Bradford, 683 P.2d at 929, we 

stated: 

Similarly, evidence to establish probable cause 

need not be as complete s the evidence necessary to 

establish guilt. (Citation omitted. ) [TI he determination whether a motion 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 

that discretion. 

Defendant was charged with felony assault pursuant 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 for which he was charged; the police were called 

to investigate and the serial number of his gun was reported; 

an hour and a half later, Popp was shot at by a male person 

from another car, causing considerable damage to Popp's car; 

Popp described the perpetrator's car as a dirty 

reddish-color, possibly a Rabbit 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 gun was discovered in a ditch near where 

the shooting took place. We affirm the District Court's 

holding that the State's motion for leave to file an information was supported by 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 of prejudice. 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 there were 58 days chargeable to the defendant 

which must be deducted from the total delay. 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 a presumption of prejudice to the defendant. 
It also contends that even if the 162-day delay is presumptively prejudicial, consideration of the reason for the delay 

and whether there was actual prejudice would excuse the 

delay. The reason for the delay was considered and explained 

at length by the District Court. 

Both the Federal and State Constitutions guarantee 

defendant a right to a speedy trial. In determining the 

question of prejudice pursuant to Mont. 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 

factors are: 

1. length of delay; 

2. reason for the delay; 

3. whether defendant asserted the right; and 

4. whether defendant was prejudiced. 

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. State v. 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 

(214 days). 

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 Defendant did 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 a plea (October 6, 1988), 

was an oversight by the State. The State and this 

Court assumed Defendant had entered a plea at the 

time the information was filed or shortly thereafter. According to the Montana Supreme Court in 

State v. Waters, . . . "The right to a speedy trial 

is designed to prevent oppressive tactics by the 

State." The 154 day 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 District Court 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 dismiss before 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 of plea 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 which may be prejudiced by a delay. 

The interests are: 

(1) to prevent oppressive pretrial incarceration; 

(2) to minimize anxiety and concern of the accused; and (3) to limit the possibility that the 

defense wSll he impaired. Barker, 407 U.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 affirm the District Court's conclusion that 

defendant was not denied his right to a speedy trial. 

Did the District Court err in denying defendant's motion 

in limine? 

Defendant contends the District Court erred by denying 

his motion in limine to exclude photographs of defendant's 

car or any testimony regarding the car because 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 that the car was "dirty. 

And it was kind of reddish color. I couldn't tell, although, 

it was so very dark." Defendant points out that Popp admitted seeing a Plymouth Horizon that he thought might be the 

vehicle involved and called the police about it. 

The State maintains that the evidence was relevant 

pursuant to Rule 402, M.R.Evid. It contends that the photos 

together with Popp's testimony clearly tended to place defendant in the assailant's vehicle at the time of the shooting, 

and was therefore relevant. We agree. 

Rule 401, M.R.Evid., defines relevant evidence as: 

evidence having any tendency to make the existence 

of any fact that is of consequence to the determination of the action more probable or less probable 

than it would be without the evidence. Relevant 

evidence may include evidence bearing upon the 

credibility of a witness or hearsay declarant. 
In Derenberger v. Lutey (19831, 207 Mont. 1, 9, 674 P.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 to measure 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 rejects more stringent ones which call for 

evidence to make the fact or proposition for which 

it is offered more probable than any other. It is 

meant to allow wide admissibility of 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 this motion. Defendant contends that the evidence was 

wholly circumstantial and implies that to be enough to leave 

a "reasonable doubt" in the minds of the jury. He therefore 

maintains that he should have been acquitted. 

The standard of review on issues of substantial evidence 

is that the conviction cannot be 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 be 
overturned absent a clear abuse of discretion. State V. 

Howie (1987), 228 Mont. 497, 744 P.2d 156. Circumstantial 

evidence alone is sufficient to obtain a conviction. It must 

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), 195 Mont. 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 

reasonable doubt. 

Affirmed. 

&P-@+. Justices