No. 87-520 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsRONALD WILLIAM McKIMMIE, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable John McCarvel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

John Keith, Great Falls, Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

John Paulson, Asst. Atty. General, Helena 

Patrick L. Paul, County Attorney, Great Falls, Montana 

Steve Hagerman, Deputy County Attorney, Great Falls 

Submitted on Briefs: April 28, 1988 

Clerk 
Mr. Chief Justice J. A. Turnage delivered the Opinion of the 

Court. 

Defendant McKimmie appeals his September 23, 1987, 

bench convictions in the Eighth Judicial District Court, 

Cascade County, for deliberate homicide, burglary, theft and 

evidence tampering. McKimmie was sentenced to one hundred 

years in the Montana State Prison for deliberate homicide, 

ten years for burglary, ten years for tampering with physical 

evidence, and ten years for use of a dangerous weapon, with 

the sentences to run consecutively. McKimmie was also sentenced to six months in the Cascade County jail for misdemeanor theft, to run concurrently. McKimmie was designated a 

nondangerous offender. We affirm the convictions. 

McKimmie raises two issues for our review: 

1. Does sufficient evidence support McKimmiels conviction of deliberate homicide? 

2. Does sufficient evidence support McKimmiels conviction of burglary, theft and tampering with physical evidence? 

At 2: 07 a.m. on June 6, 1987, the police dispatcher in 

Great Falls received a call from a woman asking for help. 

Upon questioning, she stated that her husband had shot her 

with a rifle. She also stated that her husband had taken the 

rifle and fled in a 1976 Ford Pinto. 

The dispatcher stayed on the line for several minutes 

until a police officer arrived at the victim's apartment. 

The officer found the victim, Valarie McKimmie, lying on the 

couch with a telephone in her hand. She had a two-inch hole 

in her chest. The officer hung up the phone and immediately 

tried to stop the bleeding by applying direct pressure to the 

wound. A second officer soon arrived and assisted until the 

ambulance arrived. The second officer asked Valarie who had 

shot her. She replied: "My husband." The officer then asked 

for her husband's name, and she replied: "Ronald." 
Valarie was transported to Deaconess Medical Center in 

Great Falls. The police were unable to get any further statements from her. Valarie died as a result of the gunshot 

wound on June 11, 1987. 

McKimmie was subsequently charged with deliberate 

homicide, burglary, theft and evidence tampering. Trial was 

held on September 22, 1987. Prior to presenting his 

case-in-chief, McKimmie stipulated to the following facts: 

McKimmie shot Valarie with a rifle belonging to Eugene 

Ameline. Following the shooting, McKimmie left the rifle 

alongside Interstate 15 south of Great Falls. McKimmie then 

drove to Salt Lake City, where he was arrested for DUI by a 

Utah Highway Patrol officer in the afternoon of June 6, 1987. 

McKimmie told the arresting officer that he had shot his wife 

in Montana. 

Issue 1. Deliberate Homicide 

The District Court convicted McKimmie of deliberate 

homicide as defined in S 45-5-102 (1) (a), MCA (1985) : "Criminal homicide constitutes deliberate homicide if: (a) it is 

committed purposely or knowingly." At sentencing, the District Court told McKimmie: "[Ylou laid in wait for her until 

she came home, and you deliberately shot her. She was still 

holding her purse, and one of the shells penetrated the metal 

clasp on the purse and went into her chest, which indicates 

to me that this is deliberate homicide of the worst type." 

However, McKimmie contends that the shooting was accidental and that the State did not prove he acted purposely or 

knowingly in causing Valarie's death. 

Our standard of review on sufficiency of evidence is 

whether the evidence, when viewed in a light most favorable 

to the prosecution, would allow any rational trier of fact to 

find the essential elements of the crime beyond a reasonable 
doubt. State v. Kutnyak (Mont. 1984), 685 P.2d 901, 910, 41 

St.Rep. 1277, 1289. If events are capable of different 

interpretations, the trier of fact shall determine which is 

the most reasonable. State v. Matson (Mont. 1987) , 736 ~.2d 

971, 973, 44 St.Rep. 874, 875, citing State v. Atlas (Mont. 

In the instant case, the State was required to show 

that McKimmie purposely or knowingly caused the death of 

Valarie. "Knowingly" is defined in 5 45-2-101 (33), MCA: 

A person acts knowingly with respect to 

conduct or to a circumstance described 

by a statute defining an offense when he 

- is aware of his 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 he is aware that it is 

highly probable that such result will -- -- be 

caused by - his conduct. [Emphasis 

added. 1 

This "knowing" element was manifest in McKimmie's 

actions. McKimmie admitted that he had broken into Eugene 

Arneline's apartment earlier in the evening. McKimmie removed 

the weapon used to kill Valarie, which was a 7.65 Mauser 

rifle, and two sizes of ammunition from the apartment. He 

left everything else in place. 

McKimmie testified that he then tried to commit suicide 

with the rifle around 10: 30 p.m. on June 5. As he was positioning himself on the couch, he claimed that the rifle 

slipped off the coffee table and discharged into the refrigerator. But the District Court stated: "You said that you 

attempted to commit suicide, but it's the Court's belief that 

you fired that shot that hit the refrigerator, about a foot 

from the floor, just to see if it worked, see if you had the 

right ammunition in the gun." 
McKimmie testified that he reloaded the rifle around 

12: 30 a.m. According to McKimmie, when Valarie came home at 

about 1:30 a.m., McKimmie talked to her about his attempted 

suicide. While he was holding the rifle across his lap, 

Valarie sat on an adjacent couch. McKimmie stated that he 

fell back, and the gun discharged. McKimmie testified: "I 

looked at her and thought, my God, she ' s dead. " A firearms 

expert testified that the rifle was operating normally and 

that Valarie was shot from a distance of less than four feet. 

We find that McKimmie's actions prior to, during and 

after the shooting demonstrate an awareness of his conduct 

and its probable results. However, McKimmie next asserts 

that he is an alcoholic and was not aware of what he was 

doing because he he drank alcohol from noon on June 5, 1987, 

until his arrest on June 6, 1987, for DUI. We note 

§ 45-2-203, MCA (19851, which states: 

A person who is in an intoxicated or 

drugged condition is criminally responsible for his conduct unless such condition is involuntarily produced and 

deprives him of his capacity to appreciate the criminality of his conduct . . . [Emphasis added.] 

By his own admission-on the witness stand, McKimrnie had 

voluntarily consumed alcohol since noon. Where sufficient 

credible evidence supports the findings, the question of the 

relationship of voluntary intoxication to specific intent 

will not be reconsidered on appeal. State v. Hardy (19801, 

185 Mont. 130, 135, 604 P.2d 792, 795-796. In light of the 

supporting evidence, we will not make an independent determination of the effect of voluntary intoxication on the defendant's state of mind. State v. Sage (Mont. 1986), 717 P.2d 
Finally, McKimmie admits that his flight after the 

shooting might infer knowledge or purpose, but he asserts 

that mere flight does not establish the requisite mental 

state. We note that, standing alone, such flight does not 

establish the requisite mental state. However, flight by a 

defendant may be considered by the trier of fact as a circumstance tending to prove consciousness of guilt. State v. 

Charlo (Mont. 1987), 735 P.2d 278, 282, 44 St.Rep. 597, 603. 

As trier of fact, the District Court determined the evidentiary weight and significance of McKimmie's flight from the 

crime scene. State v. Twoteeth (Mont. 1985), 711 P.2d 789, 

794, 42 St.Rep. 1873, 1879. 

McKimmie fled the crime scene, he disposed of the 

Mauser rifle, and he subsequently admitted shooting Valarie. 

The record contains ample evidence that McKimrnie knowingly 

caused the death of Valarie. If the act which causes the 

death is done purposely or knowingly, deliberate homicide is 

committed even if death is not the intended result. State v. 

Sigler (Mont. 1984), 688 P.2d 749, 758, 41 St.Rep. 1039, 

1047. McKimmie's claim is without merit. We hold that the 

evidence clearly supports McKimmie's conviction for deliberate homicide. 

Issue 2. Burglary, theft and tampering 

a. Burglary 

McKimmie was convicted of burglary as defined in 

§ 45-6-204 (I), MCA: 

A person commits the offense of burglary 

if he knowingly enters or remains unlawfullv in an occu~ied structure with the 

urpose to commit - an offense therein. 

qEmphas isadded .I 

McKimmie contends that he entered Ameline's apartment 

in his capacity as apartment manager. Arneline lived two 
apartments away from McKimmie. McKimmie asserts that he was 

in the process of evicting Ameline for nonpayment of rent. 

McKimmie argues that he merely inventoried Ameline's property 

for storage and removed Ameline's rifle as a "protective 

measure." He concludes that no evidence shows a purpose to 

commit an offense. 

We disagree. McKimmie's "apartment manager" defense to 

burglary is inadequate. McKirnmie acted far beyond his statutory authority as agent of the landlord. First, his method 

of entry was destructive. The police investigating officer 

noted that the main window on Ameline's apartment door had 

been broken out and the wire mesh behind the window had been 

damaged. Second, McKimmie entered Ameline's apartment at 

night. Third, McKimmie entered without the tenant's consent. 

Fourth, he entered without notice. McKimmie plainly violated 

a landlord's right of access under S 70-24-312(3), MCA: 

". . . the landlord shall give the tenant at least 24 hours' 

notice of his intent to enter and may enter only at reasonable times. " (Emphasis added. ) 

McKimrnie ' s unlawful entry was also done knowingly. 

McKimmie testified in detail about where he had been and what 

he had done in the hours prior to the time he entered 

Ameline's apartment. McKimmie precisely described his entry: 

"I had keys for all of the units except his. So I had to use 

a small hammer on the window and I was careful to try to keep 

the damage as minimal as possible." McKimmie then recalled 

in detail the events which occurred after his entry into the 

apartment. McKimmie's testimony falls squarely within the 

definition of "knowingly" in S 45-2-101(33), MCA. 

The third element of burglary--"purpose to commit an 

offensen--is discussed below, and shows that theft was the 

object and purpose of McKimmie's entry into the apartment. 

We hold that McKimrnie's conviction of burglary is amply 
supported by the theft, the physical evidence of forced entry 

and McKimmiels admissions. 

b. Theft 

Theft is defined in S 45-6-301 (I), MCA: 

A person commits the offense of theft 

when he purposely or knowingly obtains 

or exerts unauthorized control over 

property of the owner and: (1) has the 

purpose of deprivinq the owner of the 

property. [Emphasis added.] 

The State proved each element of theft. First, 

McKimmie admitted that he removed the rifle and ammunition 

from Ameline's apartment. He did so without Ameline's knowledge or consent. McKimmie then fired and expended two 

shells. McKimmiels actions thus constitute a knowing exertion of unauthorized control. 

Second, McKimmie's conduct deprived Ameline of his 

rifle. "Deprive" means to withhold property of another and 

"dispose of the property and use or deal with the property so 

as to make it unlikely that the owner will recover it." 

Section 45-2-101 (19) (d) , MCA. After he shot his wife, 

McKimmie took Ameline's rifle and fled from the scene. 

McKimmie testified that he stopped his car on Interstate 15 

near Gore Hill. He stated: "I grabbed the rifle and tossed 

it over the roof of the car." Such abandonment plainly 

deprived Arneline the use of his property. Only by chance, 

the rifle was recovered ten days later. We hold that the 

physical evidence and McKimmie's own admissions fully support 

his conviction for theft. 

c. Tampering 

The Mauser rifle and the victim's purse were found by 

highway workers on June 16, 1987. The purse had 
identification in it showing that it belonged to Valarie. 

Ameline identified the rifle as his. The rifle had already 

begun to rust. 

Tampering is defined in S 45-7-207(1), MCA: 

A person commits the offense of tampering with or fabricating physical evidence if, believing that an official 

proceeding or investigation is pendin 

or about to be institutedrhe: (a? 

alters, destroys, conceals or removes 

any record, document, or thing with 

purpose to impair its verity or availability in such proceeding or investigation. [Emphasis added.] 

On the witness stand, McKimmie admitted that he discarded the rifle and purse in the ditch. However, McKimmie 

contends that he was too distraught to have formed the requisite mental state or belief that an official investigation 

was pending. 

The District Court reviewed the evidence, observed 

McKimrnie's testimony and assessed his veracity. A trier of 

fact may infer the requisite mental state from a defendant's 

conduct and statements. State v. Pierce (1982), 199 Mont. 

57, 63, 647 P.2d 847, 851. McKimmie removed and concealed 

the evidence. He not only impaired its availability, but 

also caused its condition to change. Viewed in a light most 

favorable to the State, the evidence was reasonably interpreted and adequately supports McKimmie's conviction of 

tampering with evidence. 

We affirm the four convictions. 
We concur: 

&94?Sk7/ Justices