No. 90-147 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1991 

STATE OF MONTANA, I 

Plaintiff and Respondent, 

-vBABE BEACH, 

Defendant and Appellant. 

APPEAL FROM: District Court of the sixteenth Judicial District, 

In and for the County of Carter, 

The Honorable Joe L. Hegel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

James G. Hunt; Dix & Hunt Law Firm; Helena, Montana 

For Respondent: 

Marc Racicot, Attorney General; Joe Thaggard, 

Asst. Atty. General; Helena, Montana 

Richard Harkins; Carter County Attorney; Ekalaka, 

Montana 

Submitted on Briefs: December 20, 1990 

Filed: 

Decided: February 5, 1991 
Justice Fred J. Weber delivered the Opinion of the Court. 

Defendant, Babe Beach, was convicted of misdemeanor assault, 

a violation of § 45-5-202, MCA, in the District Court for the 

Sixteenth Judicial District, Carter County. From that conviction, 

defendant appeals. 

The sole issue for our review is whether sufficient evidence 

supported defendant's conviction for misdemeanor assault. 

Defendant and his girlfriend, Beyerly Winkley (Ms. Winkley) 

lived together in Ekalaka, Montana. Ms. Winkley's three children 

also lived with the couple. 

On the morning of December 28, 1988, defendant and Ms. Winkley 

drove to Baker, Montana where she left her two older children to 

visit with their grandmother. While in Baker, defendant and Ms. 

Winkley had an argument. Defendant returned home to Ekalaka alone. 

When defendant returned home, Ms. Winkley's youngest child, Josh, 

was still at defendant's house. 

That evening, Ms. Winkley contacted the Carter County Sheriff, 

Joe Carey, and asked him to retrieve Josh from defendant's home. 

That same evening Joe Carey and Neil Kettelmann, Ekalaka's chief 

of police, went to defendant's home and asked him to get Josh. 

Defendant refused and stated that Ms. Winkley would have to pick 

the child up herself. Joe Carey informed Ms. Winkley of what 

happened and she returned to Ekalaka, accompanied by a friend, Alma 

Janz. 

About 9:30 p.m., Joe Carey, Neil Kettelmann, Ms. Winkley, Ms. 

Janz and Steve Markuson, a former Ekalaka policeman, went to 

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defendantls home. The house was dark. After knocking on the back 

door and calling defendant's name with no response, Ms. Winkley 

then retrieved a house key from its hiding place within the yard. 

The group then entered the house. 

Ms. Winkley testified that when she saw defendant standing in 

the living room, she walked passed him and told him she had come 

to get Josh. From upstairs, she heard defendant tell Joe Carey to 

get out of his house. She testified that she then heard a gun 

cock. When she came back downstairs with Josh she saw that 

defendant was holding a gun. Joe Carey and the others had gone 

back outside. Ms. Winkley then left the house. 

Joe Carey testified that he, Neil Kettlemann, and Ms. Winkley 

were at the kitchen door when defendant said, "Get the hell out of 

here". He testified that when the group did not leave, defendant 

said, "1 am going to get a gunw. When defendant came back with a 

gun, with the exception of Joe Carey and Ms. Winkley, the rest of 

the group ran out of the house. Joe Carey testified that Ms. 

Winkley went on to retrieve her son. He testified that he told 

defendant that "we'd come after the three-year-old boy and we 

didn't want any problems. And then he yelled at me to get out." 

He testified that he then left the house. 

I 

Was there sufficient evidence to support defendant's 

conviction for misdemeanor assault? 

Defendant claims the defense of justifiable use of force to 

protect his family, his property and his home, under 55 45-3-102, 
45-3-103, and 45-3-104, MCA. The State maintains that defendants 

contention has no merit because each element of the crime of 

misdemeanor assault was proven beyond a reasonable doubt. 

Section 45-5-201, MCA, provides: 

(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. 

Defendant admits to knowingly and purposely pointing the gun 

at the group. Hence, the elements of misdemeanor assault have been 

proven. Therefore, the next question is whether the assault was 

a justifiable use of force. This contention has little merit. 

Defense of person pursuant to 5 45-3-102, MCA, is justifiable to 

defend oneself or another against such other's "imminent use of 

unlawful force1'. There are no facts to support an argument that 

Ms. Winkley and her group used such unlawful force. 

There are also no facts to support the contention of "unlawful 

entry" into defendant's home to justify defense of his home 

pursuant to § 45-3-103, MCA. Ms. Winkley herself lived in the home 

with her children as late as the morning of the day of the incident 

in question. Her youngest child was still there and she had not 

yet moved out her personal belongings. Ms. Winkley asked the 

others to enter the house with her. Defendant failed to show 

evidence of unlawful entry. 

Section 45-3-104, MCA, provides: 
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 . . . 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. 

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. Laverdure (1990) , 241 Mont. 

135, 785 P.2d 718. We hold that sufficient evidence supported 

defendant's conviction for misdemeanor assault. 

Affirmed. 

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We Concur: ,// 

Chief Justice