DA 07-0520

IN THE SUPREME COURT OF THE STATE OF MONTANA

2008 MT 404

STATE OF MONTANA,

 Plaintiff and Appellee,

 v.

JONATHAN JAMES TOTH,

 Defendant and Appellant.

APPEAL FROM: District Court of the Second Judicial District,

In and For the County of Butte/Silver Bow, Cause No. DC 06-111

Honorable Kurt Krueger, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Jim Wheelis, Chief Appellate Defender; Koan Mercer, Assistant 

Appellate Defender; Helena, Montana

For Appellee:

Hon. Mike McGrath, Montana Attorney General; Jonathan M. Krauss, 

Assistant Attorney General; Helena, Montana

Robert M. McCarthy, Butte-Silver Bow County Attorney; Mike Clague, 

Deputy County Attorney; Butte, Montana

Submitted on Briefs: September 17, 2008

 Decided: December 2, 2008 

Filed:

__________________________________________

Clerk

December 2 2008
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Justice Jim Rice delivered the Opinion of the Court.

¶1 A jury in the Second Judicial District Court convicted Jonathan Toth of assault 

with a weapon. Toth was sentenced to five years at Montana State Prison, with the 

imposition of conditions of supervision if he receives an earlier release. Toth appeals, 

raising the following issues:

¶2 1. Did the District Court err in denying Toth’s motion to dismiss at the close of 

the State’s case in chief for the State’s failure to meet its burden of proof?

¶3 2. Did Toth’s conviction for assault with a weapon subject him to double 

jeopardy?

BACKGROUND

¶4 Police arrested Toth on July 2, 2006, for misdemeanor assault, following reports 

of his involvement in an altercation in the men’s restroom of the Irish Times Pub in 

Butte. Two men, Tyler Dockter and Matthew Palmer, told police that Toth and another 

man, Mike Gardipee, verbally threatened and punched them in the restroom. They 

further reported that the fight escalated when Toth pulled a knife out of his pocket and 

attempted to stab Dockter in the stomach. The State later filed an Information which 

charged Toth with assault with a weapon, a felony, alleging that Toth caused bodily 

injury with the knife or, alternatively, caused reasonable apprehension of serious bodily 

injury with the knife. 
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¶5 After the State presented its case in chief, Toth moved for a directed verdict1 on 

the ground that the State had not met its burden of proof. The court denied the motion, 

concluding the testimony presented satisfied the State’s burden and the case was 

sufficient to go to the jury. After completion of the two-day trial, the jury found Toth 

guilty of assault with a weapon for causing reasonable apprehension of serious bodily 

injury with a weapon. 

¶6 Toth appeals.

STANDARD OF REVIEW

¶7 This Court reviews de novo a district court’s conclusion regarding the sufficiency 

of evidence to support a conviction. State v. Trujillo, 2008 MT 101, ¶ 8, 342 Mont. 319, 

¶ 8, 180 P.3d 1153, ¶ 8. The Court views the evidence in the light most favorable to the 

prosecution, and determines whether a rationale trier of fact could have found the 

defendant guilty of the crime charged beyond a reasonable doubt. State v. Andrews, 274

Mont. 292, 295, 907 P.2d 967, 969 (1995). 

¶8 We have reviewed the merits of a defendant’s double jeopardy claim, despite the

failure to raise the issue in the district court, where the court could have determined from 

the record that the government lacked the power to charge a defendant. State v. Cech, 

2007 MT 184, ¶ 9, 338 Mont. 330, ¶ 9, 167 P.3d 389, ¶ 9. We review a district court’s 

 

1 A motion for directed verdict in a criminal case is properly denominated as a motion to 

dismiss for insufficient evidence. See State v. McWilliams, 2008 MT 59, ¶ 36, 341 Mont. 

517, ¶ 36, 178 P.3d 121, ¶ 36.
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conclusions of law to determine if they are correct. State v. Boucher, 2002 MT 114, ¶ 10, 

309 Mont. 514, ¶ 10, 48 P.3d 21, ¶ 10.

DISCUSSION

¶9 1. Did the District Court err in denying Toth’s motion to dismiss at the 

closure of the State’s case in chief for the State’s failure to meet its burden of proof?

¶10 Mont. Code Ann. § 45-5-213 sets forth the essential elements of assault with a 

weapon as follows:

A person commits the offense of assault with a weapon if the person 

purposely or knowingly causes:

(a) bodily injury to another with a weapon; or

(b) reasonable apprehension of serious bodily injury in another by use of 

a weapon or what reasonably appears to be a weapon. 

“Serious bodily injury” includes a 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

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(66), MCA. A “weapon” is broadly defined as “an instrument, article, 

or substance that, regardless of its primary function, is readily capable of being used to 

produce death or serious bodily injury.” Section 45-2-101(79), MCA; see also State v. 

R.B. “J” C, 2004 MT 254, ¶ 15, 323 Mont. 62, ¶ 15, 97 P.3d 1116, ¶ 15 (threatened use 

of an un-lit cigarette lighter can cause reasonable apprehension of serious bodily injury). 

¶11 Toth argues that no reasonable trier of fact could have concluded that the knife he 

allegedly used to threaten the victims with could have caused a reasonable apprehension 
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of serious bodily harm, because the jury did not have enough information regarding the 

characteristics of the knife. Toth notes that the knife was never found and the 

eyewitnesses were unable to specifically describe the blade of the knife. Toth contends 

that, while a pocket knife might support a finding of apprehension of simple bodily 

injury, there was “no evidence” which would support a finding of serious bodily injury. 

He argues that evidence regarding “the length of the alleged blade and the corresponding 

physiological effects of an abdominal wound from such a blade” was required. Toth 

relies primarily on State v. Andrews, wherein we held the State had failed to present 

sufficient evidence that a victim’s injuries created a substantial risk of death. In response, 

the State discusses the evidence offered against Toth, including his statement to Dockter 

that “I’m going to kill you,” the testimony of the victims about Toth drawing a knife, 

assaulting Dockter with it, and the cuts on Dockter’s arm, arguing the evidence was 

sufficient to support the verdict that Toth had caused reasonable apprehension of serious 

bodily injury.

¶12 The issue here is not identical to the issue in Andrews. There, a father was 

convicted of aggravated assault after a jury found he had shaken his baby and caused the 

child serious bodily injury. Andrews, 274 Mont. at 295, 907 P.2d at 969. The State 

elicited testimony from two physicians who established the child had suffered severe 

dehydration, weight loss, a fever, and lethargy resulting from “shaken baby syndrome.” 

Andrews, 274 Mont. at 294-95, 907 P.2d at 968-69. We held that because no one had 

testified that the child’s injuries were life threatening, a fact-finder could have found from 
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the evidence that the child suffered bodily injury, but not serious bodily injury as defined 

in the code. Andrews, 274 Mont. at 295, 907 P.2d at 969. Here, unlike Andrews, the 

State did not allege that Toth caused serious bodily injury, for which proof of the extent 

of the injury would be necessary. Rather, the State alleged that Toth, by use of a knife,

caused reasonable apprehension of a serious bodily injury. Thus, the focus of the charge 

was the fear or apprehension that such an injury would occur—not that it did occur—and 

whether that fear was reasonable. 

¶13 To prove the elements of this charge, the State presented witnesses who testified 

that they had seen Toth wield a knife and that he had threatened to kill Dockter. 

Evidence of cuts which Toth made upon Dockter was introduced, and Dockter testified 

that he was “petrified” that Toth was going to stab him in the stomach. Dockter testified

that the knife was a “locking blade” knife that could fit in Toth’s pocket. Though a knife 

was not recovered, we have held that the trier of fact need not have the actual weapon 

before it in order to convict a defendant of assault when the circumstantial evidence 

supports a finding that the defendant used a weapon. State v. Longneck, 201 Mont. 367, 

375, 654 P.2d 977, 981 (1982). 

¶14 Viewing the evidence in favor of the State, the jury could have found beyond a 

reasonable doubt that Toth’s actions of wielding a knife, threatening to kill, and cutting 

the victim caused the victim reasonable apprehension of being stabbed and seriously 

injured, even though the knife was not described with specificity or the nature of 
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potential stab wounds it could inflict proved by medical evidence. We thus conclude that 

the District Court properly denied the motion to dismiss.

¶15 2. Did Toth’s conviction for assault with a weapon subject him to double 

jeopardy?

¶16 The PSI prepared for Toth’s sentencing listed as part of Toth’s criminal history, a 

$170 bond forfeiture for disorderly conduct in Butte, Montana, on July 2, 2006, the same 

day of the altercation at the Irish Times Bar. No other information exists in the record 

relating to this event, and Toth did not raise a double jeopardy objection in the District 

Court.

¶17 Toth argues that if the bond forfeiture for disorderly conduct listed in the PSI 

arises from the same events which led to his assault charge, double jeopardy would bar 

the further prosecution for assault. He asks that we remand the case for an evidentiary 

hearing on this issue. In response, the State argues that the record is insufficient to 

demonstrate that the disorderly conduct matter had any connection to the events for 

which Toth was charged with assault and thus, Toth failed to meet his burden to provide 

a factual basis for his claim and the District Court could not have determined that the 

government lacked the power to bring the assault charge. 

¶18 Article II, Section 25 of the Montana Constitution and the Fifth Amendment to the 

United States Constitution provide that “no person shall be twice put in jeopardy for the 

same offense.” This prohibition against double jeopardy provides “protection against a 

separate prosecution for the same offense after acquittal, protection against a second 

prosecution for the same offense after conviction, and protection against multiple 
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punishments for the same offense.” State v. Barron, 2008 MT 69, ¶ 14, 342 Mont. 100, 

¶ 14, 179 P.3d 519, ¶ 14 (citing State v. Anderson, 1998 MT 258, ¶ 7, 291 Mont. 242, ¶ 7, 

967 P.2d 413 ¶ 7. Section 46-11-504, MCA, bars the subsequent prosecution for an 

offense based on the same transaction for which a person has already been convicted. 

¶19 Toth’s double jeopardy claim is based on his contention that a bond forfeiture is 

synonymous with a conviction, and would bar an additional prosecution arising from the 

same transaction. However, even if the record was sufficient to demonstrate that these 

charges were related, Toth’s claim would nonetheless fail.

¶20 The parties do not offer any authority suggesting that a bond forfeiture equates to a 

conviction for purposes of double jeopardy absent specific legislation to that effect.

Faced with this same issue, the Supreme Court of South Carolina concluded otherwise, 

holding that, unless specified by the legislature, a bond forfeiture does not equal a 

conviction. Scott v. S.C., 513 S.E.2d 100 (S.C. 1999). The Scott Court reasoned as 

follows:

[A] Louisiana court stated in a defamation case that “[a] conviction is a 

judicial determination of guilt. A forfeiture of bond is a decision by the 

person charged not to appear for trial, thereby avoiding a judicial 

determination of guilt or innocence.” Hopkins v. Keith, 348 So. 2d 999, 

1002 (La. Ct. App. 1977) (affirming summary judgment for defendant 

newspaper sued because story failed to fully distinguish between bond 

forfeiture and conviction, a distinction that is unclear to much of the 

public). See also 8A Am. Jur. 2d Bail and Recognizance § 113 (1997) 

(bond forfeiture proceeding “does not involve the guilt or innocence, 

conviction or acquittal, of any person. Rather, a bail bond forfeiture and 

the judgment thereon against a surety is a civil action to enforce the 

surety’s contract with the state”); 8 C.J.S. Bail §§ 5, 160-178 (1988) 

(discussing purpose and forfeiture of bail bond).
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This Court has held that a bond forfeiture is equivalent to a conviction 

when the Legislature has defined it as a conviction by statute . . .

We have found no case in South Carolina or elsewhere, and the parties have 

cited none, in which a court explicitly declared that a bond forfeiture is 

equivalent to a conviction, absent a statute declaring it to be a conviction.

Scott, 513 S.E.2d at 103-04. The Scott Court also noted that other states had reached the 

same conclusion. Scott, 513 S.E.2d at 103, n. 2.

¶21 A “conviction” is defined in Montana’s code as “a judgment or sentence entered 

upon a guilty or nolo contendre plea or upon a verdict or finding of guilt rendered by a 

legally constituted jury or by a court of competent jurisdiction authorized to try the case 

without a jury.” Section 46-1-202(7), MCA. This definition does not include a bond 

forfeiture. The Legislature has expanded the definition of conviction to include bond 

forfeitures for particular purposes only. For example, the Legislature defined 

“conviction” to include bond forfeitures for purposes of the revocation or suspension of 

drivers’ licensure and other motor vehicle regulations. Section 61-5-213, MCA (“the 

term ‘conviction’ means: . . . (4) a forfeiture of bail or collateral deposited to secure the 

person’s appearance in court . . .”). The Legislature also specifically defined 

“conviction” to include bond forfeitures for purposes of other offenses. See §§ 45-5-

206(3)(b), 45-5-220(5)(c), 45-5-621(2)(b), MCA. Otherwise, the Legislature consistently 

mentions them separately. See §§ 23-2-507(1), 37-47-341(5), 61-3-119(1)(b)(ii)(B), 87-

1-102(2)(b), 87-4-427(1)(d), MCA.

¶22 Bond forfeiture is essentially a civil action. It “does not involve the guilt or 

innocence, conviction or acquittal, of any person.” Scott, 513 S.E.2d at 253-54 (quoting 
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8 Am. Jur. 2d Bail and Recognizance § 113 (1997)). A bond forfeiture is not admissible

as evidence “in any other civil action.” Section 46-9-512(4), MCA. A person who fails 

to appear when the court so requires may be subject to criminal liability for bail-jumping 

or contempt, crimes which are separate and distinct from any civil liability. Sections 45-

7-308, 309, MCA. 

¶23 The law’s general treatment of a bond forfeiture as a civil matter and the 

distinction made by the Legislature between bond forfeitures and criminal convictions, 

including the specific inclusion of forfeitures within the definition of “conviction” for 

particular purposes only, lead us to conclude that, even if Toth’s felony assault charge 

arose out of the same transaction as the disorderly conduct, jeopardy did not attach by

Toth’s bond forfeiture, and his claim must therefore fail. 

¶24 Affirmed.

/S/ JIM RICE

We concur: 

/S/ JAMES C. NELSON

/S/ W. WILLIAM LEAPHART

/S/ JOHN WARNER

/S/ PATRICIA COTTER