NO. 87-571 

LN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsDARRELL W. CRABB, 

Defendant and Appellant. 

APPEAL FROM: District Court of Sixth Judicial District, 

In and for the County of Park, 

The Honorable Byron Robb , Judqe presidinq . 

COUNSEL OF RECORD: 

For Appellant: 

Moses Law Firm; Stephen C. Moses, Billings, Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

Joe R. Roberts, Asst. Atty. General, Helena 

Wm. Nels S%/a.ndal, Livingston, Montana 

Dan McGregor, Deputy County Atty., Livingston 

Submitted on Briefs: April 7, 1988 

Decided. May 26, 1988 

Fil ed: hl bY 3, 6 1988' 

- 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

The defendant/appellant, Darrel-1 W. Crabb, was convicted 

of one charge of felony assault as specified in 

$ 45-5-202(2) (b), MCA. Trial was held before a iury in the 

Sixth Judicial District, Park County, with the Honorable 

Byron L. Robb presiding. Crabb appeals his conviction and we 

affirm. 

Defendant/appellant, Darrell Crabb (Crabb) along with 

his wife, owns and operates the All Seasons Inn located in 

Cooke City, Montana. Geri Donahue worked at the Inn and her 

employment ceased in November 1986. Following the 

termination of Donahue's employment, plans were made for her 

to be transported to Livingston, Montana by a friend, William 

Howard, on November 18, 1986. While traveling to Cooke City 

from Livingston, Howard experienced car trouble and was 

eventually assisted by a friend, Claude Nead. Howard and 

Nead then proceeded to Cooke City driving Nead's van, and 

arrived at approximately 10:30 p.m. to 11:OO p.m. 

Despite the fact that Donahue lived in the employee 

living quarters in the basement of the Tnn, Howard and Nead 

entered the Inn and began to look for Donahue on the second 

and third floors. Testimony at trial indicated that Nead and 

Howard may not have realized the location of Donahue's living 

quarters. Crabb resided on the third floor with his wife and 

became concerned when he heard voices and noises in the 

hallway. Apparently, business was very slow at this 

particular time of year and most rooms were empty and not 

prepared to receive customers. Crabb tucked a revol~~er into 

his pants and went to investigate. 
Nead and Howard eventually located Donahue back in the 

lobby area of the Inn. After a short conversation, Crabb 

entered the lobby area and a dispute arose. In the course of 

the dispute, Crabb revealed his revolver and pointed it at 

Howard. Testimony received at trial indicated that Crabb 

threatened to shoot Howard as he aimed the gun at him. 

Following an exchange of words, Crabb eventually ceased 

pointing the revolver at Howard. Some of Donahue's 

possessions were then loaded into the van and the group 

departed. Upon arriving in Gardiner, Montana, a deputy 

sheriff was contacted and the incident was reported. 

Crabb was later charged by information on one count of 

felony assault, S 45-5-202(2)(b), MCA, charging that he 

"purposely or knowingly caused reasonable apprehension of 

serious bodily injury in William Howard by use of a weapon to 

wit, a revolver, by pointing a revolver at him and 

threatening him." A jury trial was commenced on August 3, 

1987 and Crabb was found guilty. Crabb received a three year 

deferred sentence and was placed on probation. 

Crabb raises four issues for our consideration on 

appeal : 

1. Does the evidence sufficiently support the jury 

verdict of guilty? 

2. Was there a justifiable reason for the defendant to 

threaten the use of force? 

3. Did the defendant "use" his weapon? 

4. Did the State prove the appellant acted with an 

appropriate mental state? 
Sufficiencv of the evidence. 

Crabb asserts the evidence presented at trial does not 

support the verdict. As to this particular issue, Crabb 

makes no additional specific claims as to why the evidence is 

insufficient. In considering whether the evidence is 

sufficient to support a conviction for a criminal offense we 

will look to the following standard of review as stated in 

Jackson v. Virginia (1979), 443 U.S. 307, 318, 319, 99 S.Ct. 

[Tlhe sufficiency of the evidence to 

support a criminal conviction must be not 

simply to determine whether the jury was 

properly instructed, but to determine 

whether the record evidence could 

reasonably support a finding of guilt 

beyond a reasonable doubt. 

But this inquiry does not require a court 

to "ask itself whether - it believes 

whether the evidence at the trial 

established guilt beyond a reasonable 

doubt." Woodby v. INS, 385 US, at 282, 

17 L Ed 2d 362, 87 S Ct 483 . . . Instead, the relevant question is 

whether, after viewing the evidence in 

the liqht < most favorable to the 

prosecution, any rational trier of fact 

could have found the essential elements 

of the crime beyond a reasonable doubt. 

See Johnson v. Louisiana, 406 US, at 362, 

32 L Ed 2d 152, 92 S Ct 1620. This 

familiar standard gives full play to the 

responsibility of the trier of fact 

fairly to resolve conflicts in the 

testimony, to weigh the evidence, and to 

draw reasonable inferences from basic 

facts to ultimate facts. (Emphasis in 

original.) 

See, State v. Lundblade (Mont. 1986), 717 P.2d 575, 577, 43 

St.Rep. 732, 733, 734. In reviewing the record we find there 

is sufficient evidence upon which a rational trier of fact 
could conclude that the defendant was guilty of felony 

assault as specified in 5 45-5-202 (2) (b) , MCA. 

Use of force. 

Crabb contends he was merely using a reasonable threat 

of force to protect himself and his property. Specifically, 

Crabb relies on three statutes which state, in pertinent 

part: 

45-3-102. Use of force in defense of 

person. A person is justified in the use 

of force or threat to use force against 

another when and to the extent that he 

reasonably believes that such conduct is 

necessary to defend himself or another 

against such other's imminent use of 

unlawful force . . . 

45-3-103. Use of force in defense of 

occupied structure. A person is 

justified in the use of force or threat 

to use force against another when and to 

the extent that he reasonably believes 

that such conduct is necessary to prevent 

or terminate such other's unlawful entry 

into or attack upon an occupied structure 

45-3-104. Use of force in defense of 

other property. A person is justified in 

the use of force or threat to use force 

against another when and to the extent 

that he reasonably believes that such 

conduct is necessary to prevent or 

terminate such other's trespass on or 

other tortious or criminal interference 

with either real property (other than an 

occupied structure) or personal property 

lawfully in his possession or in the 

possession of another who is a member of 

his immediate family or household or of a 

person whose property he has a legal duty 

to protect . . . 
Crabb states that all three statutes gave him the authority 

to threaten the use of force because he reasonably believed 

the threat was necessary to protect himself, the Inn, and his 

other property. 

All three statutes require that the party implementing 

the threat of force "reasonably believe" that such action is 

necessary. Determining whether such a reasonable belief 

existed is necessarily a factual determination which belonged 

to the jury. See, State v. Larson (1978), 175 Mont. 395, 

400, 401, 574 P.2d 266, 269 (determining whether the 

circumstances were such that defendant was justified in 

shooting another is a question of fact for the jury). The 

jury was instructed as to all three of the above statutes 

addressing the justifiable use of force and still decided 

Crabb was guilty of felony assault. Therefore, the jury has 

made a factual determination that it was not reasonable for 

Crabb to believe such a threat of force was necessary. After 

a careful review of the record, we find there was sufficient 

evidence for such a finding. 

Crabb goes to great lengths to argue that he had the 

right to use the threat of force to eject Howard and Nead 

because they were committing a criminal trespass. One 

commits a criminal trespass in Montana if he "knowingly 

enters or remains unlawfully in an occupied structure . . ." 

Section 45-6-203 (1) (a), MCA. "A person enters or remains 

unlawfully in or upon any . . . occupied structure . . . when 

he is not licensed, invited or otherwise privileged to do so 

. . . [and the privilege] may be revoked at any time by 

personal communication of notice by the landowner." Section 

45-6-201 (I), MCA. The criminal trespass statute is designed 

to prohibit both the situation where one enters onto property 
knowing that entry is forbidden, as well as the situation 

where one remains on the premises of another after being 

notified to depart. Crabb cannot argue that the initial 

entry by Howard and Nead was a criminal trespass because, 

despite the late hour, the Inn was open for receiving 

business at the time of their entry. Instead, Crabb's 

trespass argument must depend on the assertion that he 

commanded them to leave and they refused to do so. Under 

these facts, Crabb would have been justified in using a 

threat of force to the extent he reasonably believed such 

conduct was necessary to terminate the criminal trespass. 

Section 45-3-103, MCA. However, as we have already noted, 

this statute requires the reasonable belief that such force 

is necessary and the jury failed to find such a reasonable 

belief. Additionally, there was evidence allowing the jury 

to conclude that Howard and Nead had not achieved the status 

of trespassers. Although Crabb testified he commanded them 

to leave, he also testified he allowed them one-half hour to 

load Donahue's property and vacate the premises. Howard's 

testimony indicated that Crabb did not tell them to leave the 

premises until long after the confrontation involving the 

weapon. We conclude there was sufficient evidence from which 

the jury could find that Howard and Nead were not 

trespassers. 

Finally, Crabb contends he has the right to be "more 

protective of himself" because he was in an isolated 

situation in Cooke City. Evidence at trial demonstrated 

there is no full time law enforcement agency in Cooke City 

and that the nearest Park County deputy sheriff is usually 

some distance away. We concede that such an isolated 

situation may more often result in facts which allow the 
justifiable use of force or threat of force. However, Crabb 

has no additional rights to defend himself or his property 

simply because he resides in an isolated area. The laws 

governing the justifiable use of force or threat of force 

obviously remain the same throughout the state and control an 

individual's actions wherever he resides in the state. 

"Use" of a weapon. 

Section 45-5-202 (2) (b) , MCA, provides that "a person 

commits the offense of felony assault if he purposely or 

knowingly causes reasonable apprehension of serious bodily 

injury in another by use of a weapon . . . I' This is the 

provision under which Crabb was charged and convicted. Crabb 

contends he did not actually "use" his revolver. Crabb 

states there is no claim that the weapon was ever fired and 

concludes one does not "use" a weapon unless it is fired or 

used as a club. Therefore, Crabb argues that the State 

failed to prove a necessary element of the offense. 

In viewing the evidence in the light most favorable to 

the prosecution, that evidence demonstrates that Crabb 

purposely or knowingly pointed a loaded .44 magnum revolver 

with an eight inch barrel at Howard's face from a distance of 

approximately six feet and threatened to kill Howard. It is 

ludicrous for Crabb's counsel to argue that such an action 

does not qualify as the "use" of a weapon causing a 

reasonable apprehension of serious bodily injury. 

Crabb's counsel contends that it would have been more 

appropriate to charge Crabb with misdemeanor assault. We 

recognize that under a different factual situation the mere 

pointing of a firearm in the direction of another might be 

more properly charged as a misdemeanor assault. The 
statutory provision of misdemeanor assault makes this obvious 

because it provides, in part: 

(1) A person commits the offense of 

assault if he: 

(d) purposely or knowingly causes 

reasonable apprehension of bodily injury 

in another. The purpose to cause 

reasonable apprehension or the knowledge 

that reasonable apprehension would be 

caused shall be presumed in any case in 

which a person knowingly points a firearm 

at or in the direction of another, 

whether or not the offender believes the 

firearm to be loaded. 

Section 45-5-201(1)(d), MCA. However, it is too large a leap 

in logic to say that this is the only provision which speaks 

to such conduct. The statute does not make it exclusive. 

More importantly, S 45-5-201 (1) (d) , MCA , and 

§ 45-5-202 (2) (b) , MCA, address differing conduct and require 

differing elements of proof. Section 45-5-201 (1) (d) , MCA, 

addresses the reasonable apprehension of bodily injury, as 

opposed to the reasonable apprehension of serious bodily 

injury which is addressed by S 45-5-202 (2) (b) , MCA. The 

statutory terms of "serious bodily injury" and "bodily 

injury" carry drastically different definitions. Compare, 

$ 45-2-101(5) and (59), MCA. Under the facts of this case, 

there is sufficient evidence to support the proposition that 

Crabb purposely or knowingly used a weapon to cause a 

reasonable apprehension of serious bodily injury, and it was 

therefore appropriate to charge Crabb with felony assault. 

Mental state. 

Crabb asserts that even assuming he committed the 

alleged act, he did so without any criminal intent or mental 
state. Counsel for Crabb is effectively asserting that Crabb 

cannot be convicted of this charge without a "bad mens rea" 

or a specific intent to commit the crime. However, Crabb's 

counsel is ignoring the fact that these concepts of mental 

state were replaced long ago. See, State v. Klein (1976), 

169 Mont. 350, 356, 547 P.2d 75, 78. The statute under which 

Crabb was charged and convicted requires a mental state of 

"purposelyn or "knowingly." See, $S 45-2-101 (58) and (33), 

MCA. The concepts of specific intent and bad mens rea are 

irrelevant under this statute and the current Montana 

criminal code. There is certainly sufficient evidence in the 

record for the jury to have inferred that Crabb acted 

purposely or knowingly. 

For the foregoing reasons the judgment of the District 

Court is affirmed. h 

We concur: