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

### , Judqepresidinq

# . COUNSEL OF RECORD:

ForAppellant:

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

For Respondent:
Hon. Mike Greely,Attorney General, Helena,Montana JoeR. Roberts,Asst. Atty. General,Helena Wm. Nels S%/a.ndal,Livingston,Montana DanMcGregor, Deputy County Atty., Livingston

Submitted onBriefs: April 7, 1988 Decided. May 26, 1988
Filed: 

### hlbY

### 3,6

### 1988'

- ClerkMr. Justice John Conway Harrison delivered theOpinion of the Court.

Thedefendant/appellant,Darrel-1W. 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. Robbpresiding. Crabb appeals his conviction andwe affirm. Defendant/appellant, Darrell Crabb (Crabb) along with his wife, owns and operates the All Seasons Inn located in Cooke City,Montana. Geri Donahueworked at the Inn and her employment ceased in November 1986. Following the termination of Donahue's employment,plans weremade for her tobe 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 thatNead and Howard may not have realized the location of Donahue's living quarters. Crabb resided on the third floorwith hiswife 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 areaand a disputearose. Inthecourse 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 contactedand theincidentwas 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 seriousbodily injury inWilliamHoward by use of aweapon to wit, a revolver, by pointing a revolver at him and threatening him." A jury trial was commenced on August 3, 1987 and Crabbwas found guilty. Crabb received a threeyear deferred sentence and was placed on probation. Crabb raises four issues for our consideration on appeal: 1. Does the evidence sufficiently support the jury verdictof guilty? 2. Was there a justifiable reason forthe defendant to threaten theuse of force? 3. Did thedefendant "use"hisweapon? 4. Did the State prove the appellant acted with an appropriatemental 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 towhy 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 Jacksonv. Virginia (1979),443 U.S. 307, 318, 319, 99 S.Ct.

[Tlhe sufficiency of the evidence to supporta criminal convictionmust 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 reasonabledoubt.

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. SeeJohnsonv. 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 recordwe find there is sufficient evidence upon which a rational trier of factcould conclude that the defendant was guilty of felony assaultas 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 toprevent or terminate such other's unlawful entry intoor attack upon an occupied structure

45-3-104. Use of force in defense of otherproperty. 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 (otherthan an occupied structure) or personal property lawfully in his possession or in the possession of another who is amember of his immediate family orhousehold or of 

### a personwhoseproperty he has a legalduty toprotect 

# . . .Crabb states that all three statutes gave him the authority to threaten the use of force because he reasonably believed the threat was necessary toprotect himself, the Inn,and his otherproperty. 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 factualdetermination 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 tobelieve such a threat of forcewas necessary. After a careful review of the record, we find therewas 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 inor 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 communicationof notice by the landowner." Section 45-6-201(I),MCA. The criminal trespass statute is designed toprohibit both the situationwhere one enters ontoproperty

### 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-halfhour to load Donahue's property and vacate the premises. Howard's testimony indicated that Crabbdid not tell them to leave the premises until long after the confrontation involving the weapon. We conclude therewas sufficient evidence fromwhich 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 thejustifiable 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 obviouslyremain the same throughout the stateand control an individual'sactions wherever he resides in the state. "Use"of aweapon. 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 underwhich 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 toprove 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 froma distanceof approximately six feet and threatened to killHoward. It is ludicrous for Crabb's counsel to argue that such an action does not qualify as the "use" of a weapon causing a reasonableapprehension 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 ofmisdemeanor assaultmakes this obvious because it provides, inpart: (1) A person commits the offense of assault ifhe:

(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 aperson knowingly points a firearm at or in the direction of another, whether or not the offender believes the firearm tobe 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 itwas therefore appropriate to charge Crabb with felony assault. Mental state. Crabb asserts that even assuming he committed the alleged act,he did sowithout 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), 169Mont. 350, 356,547 P.2d 75, 78. The statuteunder 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: